THE SENATE

Monday, October 16, 2000

Hon. George J. Furey: Honourable senators, I rise today to
inform you of the recent passing of Vincent Patrick Tobin, father
of Brian Vincent Tobin, who today resigned as Premier of
Newfoundland and Labrador.

Vincent Patrick Tobin was an exemplary individual whose
outstanding qualities cast him as a role model for members of his
family and his community. He was a quiet and unassuming man,
respected and loved by family and friends; an outstanding
husband, father, grandfather and great-grandfather. Never one to
impose his views, his wisdom and advice were sought often by
his fellow Newfoundlanders and Labradorians. He gave freely
and generously of his time, always displaying a willingness to
help through his community work and through his devotion to
family.

During a lifetime of diligent and conscientious work, he
celebrated his responsibilities and duties as an ordinary human
being and thereby shaped an extraordinary contribution to his
family, his friends, his community and, indeed, to the province he
so dearly loved. While waging a brief battle with cancer, he
demonstrated a dignity and courage which exemplified his life.

Honourable senators, I wish to offer my condolences to
his wife, Florence, and to the entire Tobin family. He will
be missed.

Hon. Lowell Murray: Honourable senators, on September 20
and 21, Senator Grafstein recorded the passing of two
distinguished educators, Dr. Claude Bissell and Dr. Murray
Ross. I associate myself with his tribute.

Dr. Bissell, a World War II veteran, edited three books and
wrote six others, three of them winners of literary awards.
He was a former chairman of the Canada Council and member of
the Council of the Arts of Ontario. Dr. Ross published
10 book-length treatises on educational and sociological history
and trends.

When Dr. Bissell was president of Carleton University in the
mid 1950s, there was a lecture series that examined the
contribution of seven eminent Canadians from politics,
journalism, poetry and fiction. What a series it must have been!
Frank Underhill lectured on Edward Blake; Malcolm Ross on
Goldwin Smith; Donald Creighton on Sir John A. Macdonald;
Munro Beattie on Archibald Lampman; Mason Wade on
Sir Wilfrid Laurier; Wilfrid Eggleston on Frederick Philip Grove;
and Robertson Davies on Stephen Leacock. When it was all over,
Dr. Bissell, happily for posterity, edited the lectures in a small
book entitled Our Living Tradition and wrote the introduction. In
it he celebrated the fact that the lectures "attempted to break
down the traditional barrier between our politics and our
literature" and quoted one of the lecturers who said that "our
living tradition is revealed to us not only in Hansard and Royal
Commission briefs but also in the wars of the spirit."

In 1952, Dr. Bissell read and reviewed the first novel,
published that year, of the Nova Scotia writer Ernest Buckler. He
liked the book so much that he went to Nova Scotia to meet the
author. There began a friendship of 30 years, ended only with
Buckler's death in 1984. A few years later, Dr. Bissell published
a memoir, Ernest Buckler Remembered, a warm friend's
discerning portrait of a great talent.

I will not try to add to Senator Grafstein's erudite commentary
on the "dumbing down" of political debate on so-called values. It
is possible that the two late educators would have treated this as
a joke. Once, at a St. Andrew's Night dinner in Cape Breton,
Dr. Ross said that the conscience of the Scots "allows us a great
deal of latitude and flexibility in behaviour without the feelings
of guilt that seem to possess so many other nationalities."

Dr. Ross was an illustrious son of Sydney, Nova Scotia, where
he was born in 1910 and earned the first of his many university
degrees at Acadia. Dr. Bissell, a native of Meaford, Ontario,
spent the last 40 summers of his life in northern Cape Breton,
and he was warmly regarded and will be warmly remembered by
his neighbours there.

Hon. Sharon Carstairs: Honourable senators, I rise today to
draw your attention to the fact that October 15 to 21 is the fifth
annual YWCA Week Without Violence. An international
campaign first instituted by the YWCA in the United States, this
Week Without Violence has spread rapidly and is currently
organized in over 50 countries, including Ireland, Palestine,
Nigeria, Taiwan and Latvia. YWCA's Week Without Violence
aims to unite all Canadians against the violence that exists in our
communities by emphasizing healthy alternatives.

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With a special emphasis this year on reaching young people,
the YWCA will be collaborating with Boys and Girls Clubs of
Canada, National Youth in Care Network and YouCan! in
coordinating activities across the country.

Each of the seven days of this campaign will address a
different violence-related theme. Yesterday marked a day of
remembrance for all victims of violence. Today, October 16, is
devoted to protecting our children. Tuesday, October 17, will
focus on increasing safety of our schools, and Wednesday will be
dedicated to confronting violence that women face. On Thursday,
Canadians will be encouraged to raise their awareness of how
men's lives and relationships are affected by anger, aggression
and stress. The focus of Friday, October 20, will be the
elimination of racism and hate crime. Finally, on Saturday,
October 21, the goal will be to illustrate how we can replace
violence through positive activities such as sports, recreation
and fun.

More than 30,000 people across Canada participated in
hundreds of activities organized by local member associations
during last year's campaign. Three point five million Canadians
were reached with anti-violence messages as a result of
these efforts.

Honourable senators, our society has taken many positive
steps toward peace and equality during our history, but violence,
unfortunately, is still pervasive in our country. Fifty-one per cent
of Canadian women over the age of 16 have been victims of at
least one act of physical or sexual violence. In 1998, over
28,952 cases of sexual offence were reported in Canada,
including 25,000 sexual assaults, of which 85 per cent were
perpetrated on women. Over 22,254 cases of spousal violence
were reported in 1997, and in 1998, 57 of the 70 persons aged 18
and over who were killed by a spouse were women.
Thirteen were men.

Honourable senators, I encourage each and every one of you to
become involved.

Hon. Erminie J. Cohen: Honourable senators, yesterday
I was proud to march with thousands of Canadian women from
every province and territory who, together with hundreds of
thousands of other women from 147 countries, were on the move
to call the attention of the world to poverty and violence. I joined
120 women from my home province of New Brunswick who
travelled to Ottawa, from where they will journey to the United
Nations and meet another busload of women from our province.

Tomorrow, October 17, they will place our issues on the
political agenda. The date is significant because October 17 is
designated by the United Nations as the day we call for the
eradication of poverty.

Tomorrow, in Ottawa, our marchers will meet with MPs and
key cabinet ministers to address the 13 demands for change and
to ask for concrete commitments to implement their
recommendations. Last evening, a small group of representatives
of the Canadian Women's March Committee met with the Prime
Minister. According to the media, the response to their demands
did nothing to offer hope and left the leaders frustrated and upset.

Tomorrow, in New York, the women will present 10 million
signatures, 30,000 from my home province of New Brunswick,
to the Secretary-General of the United Nations, Kofi Annan.

Tomorrow, in Washington, they will meet with representatives
of the World Bank and the International Monetary Fund.
Tomorrow we will ask citizens and governments acrossthe globe
to confront poverty and violence, to eradicate fear of hunger and
hurt, to say, "Enough. It has to stop."

Tomorrow we will proclaim that we will not accept continuing
poverty in our midst, just as we will not tolerate violence.
Society must understand that violence in any form is
unacceptable in a civil society and that poverty is one of the
greatest barriers to equality.

In a newspaper column last week, Moncton's Rosella
Melanson quoted a 19th century Saint John politician who, when
faced with the steadfast efforts of New Brunswick women to gain
the vote, said, "It would be easier to damn Niagara than to stop
this agitation."

Those women won, and so will we, because we have the
numbers and the determination. This has been ably demonstrated
by the World March of Women, which began and grew globally
with the Fédération des femmes du Québec. To them, I say,
"Merci beaucoup."

Hon. Marcel Prud'homme: Honourable senators, I wish to
support the five members of Parliament who released the
following communiqué.

We the undersigned welcome and support Canada's
affirmative vote in support of United Nations Security
Council resolution 1322.

We as well applaud Foreign Affairs Minister Axworthy's
October 4 criticism of Likud Leader Ariel Sharon's
provocative September 28 visit to the Al-Haram Al-Sharif
site and the violence against unarmed civilians particularly
children.

We have noted that the gravity of Israeli excesses is such
that even the U.S.A. refrained from its customary veto of
criticism of Israel and abstained.

Canada's international reputation for fairness and balance
would have been severely compromised, had Canada not
joined the U.K., France and the remaining members of the
Security Council, in condemning Israel's use of live
ammunition against unarmed civilians protesting Israel's
military occupation.

We are particularly pleased that resolution 1322 invites
the United Nations Secretary-General to continue to follow
the situation and to keep the Council informed and that the
Security Council has decided "to follow closely the situation
and to remain seized of the matter."

We encourage support for United Nations Security
Council Resolution 1322's call for "the immediate
resumption of negotiations within the Middle East peace
process on its agreed basis with the aim of achieving an
early final settlement between the Israeli and Palestinian
sides."

Honourable senators, I offer my hearty congratulations to
Colleen Beaumier, Mark Assad, Sarkis Assadourian, Joe Fontana
and Yvon Charbonneau on taking this stand. This is an
extraordinary communiqué in support of their government.

I am pleased to join with these five MPs in supporting the
government which, last week, was harshly attacked by three of
their colleagues, including Irwin Cotler, the member for
Mount Royal.

Hon. Catherine S. Callbeck: Honourable senators, I am
pleased to rise today to recognize what has truly been a
wonderful success story in my home province, that is the growth
and development of the Slemon Park Corporation. This
corporation was formed to manage and develop the assets of the
former Canadian Forces Base Summerside and has just
celebrated its tenth anniversary.

The announcement in 1989 that the base would be closed sent
shock waves through the entire province, particularly through the
town of Summerside and the surrounding area. Military presence
in Summerside had become very important, not only to the
economy of the region but also to the community in general.
Countless community groups and organizations benefited from
the tireless volunteer efforts of the men and women posted to
CFB Summerside, and the loss of the base was seen at the time
as a devastating blow.

However, what has occurred there over the past 10 years has
been very impressive. The total number of jobs at the former
military base, which contains more than 1 million square feet of
hangar space alone, is estimated at 700, with the number
continuing to grow. At its peak, CFB Summerside employed
1,400 people, but when it closed in 1989 there were just 800 jobs
at the facility, a number that I am confident Slemon Park will
surpass in the near future. The major thrust of this job creation
has been in the aerospace field, which is now one of the leading
exports of my home province.

If the past decade is any indication, I am sure the people of
Summerside and area will continue to see great things at Slemon
Park in the years to come. On this tenth anniversary, everyone
involved should be very proud of what has been accomplished to
date and of the groundwork that has been laid for the future.

Hon. E. Leo Kolber: Honourable senators, I had not intended
to speak and have not prepared a text to do so, but I am shocked
at the statement made by Senator Prud'homme.

Hon. Marcel Prud'homme: Make your speech!

Senator Kolber: I didn't interrupt you and I would ask you to
be quiet.

Senator Prud'homme: I did not name you.

The Hon. the Speaker: Honourable senators, I must remind
you that Senators' Statements are not matters for debate.
Statements are made on matters of fact and are not debatable.

Senator Prud'homme: Go ahead!

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Senator Kolber: If the senator means to suggest that only one
side is to blame in the Middle East conflict, then he is either
foolish or badly informed. I do not intend to get into debate
today. Perhaps I will prepare a statement for tomorrow.

Senator Prud'homme: Good.

Senator Kolber: Does the speaker understand that Mr. Arafat
gives bonuses to children who go into the line of fire? Does he
understand that martyrs get a $3,000 bonus if they are killed?
Does he understand that Mr. Arafat does not want peace but
war? Does he understand that the Israelis do want peace and
not war?

The Hon. the Speaker: Honourable senators, I have the
honour to table the annual report of the Information
Commissioner of Canada for 1999-2000, pursuant to section 38
of the Access to Information Act.

Hon. Jack Austin: Honourable senators, I have the honour to
present the tenth report of the Standing Committee on Privileges,
Standing Rules and Orders concerning the disclosure by
committee members of the existence of any private financial
interests when dealing with an order of reference.

Monday, October 16, 2000

The Standing Committee on Privileges, Standing Rules
and Orders has the honour to present its

TENTH REPORT

In order to provide for additional transparency through
the disclosure of private financial interests in certain
circumstances, your Committee recommends that the
Rules of the Senate be amended by adding the following:

94. (3) Where a select committee considers that it would
be in the public interest in respect of its consideration of an
order of reference, the committee may order its members to
disclose the existence of their private financial interests,
whether held directly or indirectly, in respect of the matter.

(4) Subsection (3) does not apply where the order of
reference concerns an amendment to the Constitution of
Canada or a public bill.

(5) A member may comply with an order made under
subsection (3) by signing and filing with the clerk of the
committee a declaration or update that discloses the source
and nature, but not the value, of the member's private
financial interests in respect of the matter.

(6) A committee that makes an order under subsection (3)
shall also establish time frames for present and future
members to file declarations and updates, and members who
must file shall do so within the required time.

(7) A member who does not file a declaration or update
under subsection (5) within the required time is deemed to
declare that the member has no private financial interest and
is bound by the deemed declaration until the member files
an update.

(8) A member who does not file a declaration under
subsection (5) and who has no private financial interest to
disclose is deemed to have complied with an order made
under subsection (3).

(9) The clerk of a committee with whom a declaration or
update is filed under subsection (5) shall make it available
for public consultation during business hours.

(10) The validity of a decision of a committee on a matter
is not affected by the fact that a member had a private
financial interest, whether or not disclosed in compliance
with this rule, unless the Senate or a committee decides
otherwise under subsection (1).

Respectfully submitted,

JACK AUSTIN

Chair

The Hon. the Speaker: Honourable senators, when shall this
report be taken into consideration?

On motion of Senator Austin, report placed on the Orders of
the Day for consideration at the next sitting of the Senate.

Hon. Bill Rompkey, Chair of the Standing Senate Committee
on Internal Economy, Budgets and Administration, presented the
following report:

Monday, October 16, 2000

The Standing Committee on Internal Economy, Budgets
and Administration has the honour to table its

TWELFTH REPORT

Your Committee wishes to inform the Senate that, in
accordance with Rule 130(1), it has agreed to incorporate on
a trial basis links on the Senate Website to allow internet
users to listen to live debates of the Senate and its
Committees.

Your Committee will monitor this project and will report
back on its success.

Your Committee believes this is an important
communication initiative to inform Canadians of the
important work of the Senate and its Committees.

Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, the Leader of the Government in the Senate
is not here at the moment. I expect he will be here later in the
day. In his absence, it is not possible to have Question Period;
however, I would be happy to take notice of any questions that
may be put.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, could the Deputy Leader of the
Government make inquiries as to the position of the premier, if
he is still premier, of the Province of Newfoundland and
Labrador on whether or not —

Hon. Fernand Robichaud: This is out of order. This is not the
Senate's business.

Senator Kinsella: Perhaps he could enquire whether it is the
view of the government that the necessity of bringing former
premier, if he is former premier, Tobin into the government is
because the Leader of the Government in the Senate, if he is still
Leader of the Government in the Senate, was not successful in
delivering whatever it was he was to deliver in Nova Scotia.

Hon. Dan Hays (Deputy Leader of the Government): I will
take notice of that question, honourable senators.

Hon. J. Michael Forrestall: In the event that the Leader of
the Government is here tomorrow, may I ask the deputy leader to
advise him I would very much like to have an answer as to the
government's intentions with respect to the matter of the
helicopter replacement program that has been now referred to the
international tribunal.

Hon. Dan Hays (Deputy Leader of the Government): I will
take notice of that question and ensure that it is drawn to the
attention of the leader.

Resuming debate on the motion of the Honourable
Senator Hays, seconded by the Honourable Senator
Grafstein, for the third reading of Bill C-24, to amend the
Excise Tax Act, a related Act, the Bankruptcy and
Insolvency Act, the Budget Implementation Act, 1997, the
Budget Implementation Act, 1998, the Budget
Implementation Act, 1999, the Canada Pension Plan, the
Companies' Creditors Arrangement Act, the Cultural
Property Export and Import Act, the Customs Act, the
Customs Tariff, the Employment Insurance Act, the Excise
Act, the Income Tax Act, the Tax Court of Canada Act and
the Unemployment Insurance Act.

Hon. E. Leo Kolber: Honourable senators, I spoke at some
length on the second reading of this bill and will, therefore, keep
my remarks today brief.

Bill C-24 is designed to continue the government's efforts to
make our tax system simpler and fairer for all Canadians, both
individuals and corporations, while also promoting
federal-provincial cooperation and harmonization. The main
focus of this bill is the application of the goods and services
tax, known as the GST, and the harmonized sales tax, known as
the HST. This bill helps Canadians in a number of areas and I
would like to briefly highlight them today.

The first area involves tobacco products. As part of the
government's commitment to reduce smoking in Canada, in
particular among our youth, Bill C-24 introduces an increase of
60 cents in federal excise tax per carton of 200 cigarettes sold in
Ontario, Quebec, Nova Scotia, New Brunswick and P.E.I.

Excise taxes on tobacco sticks are increased in Ontario,
Quebec, New Brunswick and P.E.I. to re-establish a uniform
national tax rate on tobacco sticks.

Bill C-24 implements a reduction in the annual exemption
threshold for the tax on exported tobacco products. This is
intended to reduce the supply of Canadian-made tobacco
products in export markets that could potentially be available
to minors.

The second area involves health care and education. Among its
health care related provisions, Bill C-24 exempts respite care
services for individuals with limited capacity as a result of an
infirmity or disability. It also maintains the exemption for speech
therapy services and ensures that osteopathic services are exempt
from the GST/HST. Bill C-24 further provides for a rebate of the
GST/HST for specially equipped motor vehicles for persons with
disabilities. These provisions will help to ease the financial
burden on Canadians dealing with disabilities.

With respect to education, Bill C-24 ensures that the existing
exemption for second-language training applies equally where
the training is provided by vocational schools.

The third area involves charities. Bill C-24 restores the
exemption for the supply of food, beverages and short-term
accommodations by charities in the course of relieving poverty,
suffering or distress of individuals. Also, charities operating
bottle return depots will be able to claim a reimbursement for the
tax component of the amount refunded by the charity.

The next area involves business. The amendments set out in
Bill C-24 have been developed in consultation with the business
and tax communities. An example of this is how Bill C-24
streamlines the operation of the GST/HST with respect to the
energy sector. The bill simplifies compliance with the GST/HST
and ensures that exports and sales to unregistered non-residents
would not bear unrecoverable tax.

Next, Bill C-24 helps promote the tourist industry by making it
more attractive for visitors to come to Canada. This is
accomplished by extending exemptions from GST/HST
provisions. For example, the visitor rebate for short-term
accommodations is extended to campsite rentals. Furthermore,
Bill C-24 allows a 50 per cent rebate on the food and beverage
component of convention fees for conventions attended by
non-residents. As well, Bill C-24 aims to provide consistent tax
treatment between tax-free international transportation services
and various separate charges that relate to such transportation.

The last area involves First Nations. Bill C-24 introduces a
number of technical amendments designed to enhance the
harmonization of First Nations sales taxes with the GST on
specific products such as alcoholic beverages, fuel and tobacco
products. This is consistent with the government's willingness to
put into effect taxation arrangements with First Nations
interested in exercising tax powers.

In conclusion, honourable senators, I could go on and on to
describe the many areas where this bill has improved the tax
system, but, as I stated at the outset, I promised to keep my
remarks brief. Bill C-24 refines, streamlines and clarifies the
application of our tax system. I therefore urge honourable
senators to support this bill at third reading.

Hon. Noel A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, on behalf of Senator Stratton, I move the
debate be adjourned, assuming that he will have the opposition
45-minute time period to make his speech tomorrow.

The Hon. the Speaker: Honourable senators, regarding the
45-minute time period, that is up to the Senate to decide. The
rule is otherwise, but the Senate can decide that tomorrow when
the matter arises.

On motion of Senator Kinsella, for Senator Stratton,
debate adjourned.

Hon. Isobel Finnerty, for Senator Banks, moved the third
reading of Bill C-27, respecting the national parks of Canada.

Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, travel time changes being what they are,
Senator Banks is not here. I wish to make a few comments at the
beginning of debate on Bill C-27 to observe that Senator Banks
will be here perhaps in time to speak today but, if not, tomorrow.
If other honourable senators have anything to say about this
legislation at this time, I would encourage them to speak now.

Hon. Thelma J. Chalifoux moved the second reading of
Bill C-14, respecting an agreement with the Norway House Cree
Nation for the settlement of matters arising from the flooding of
land, and respecting the establishment of certain reserves in the
province of Manitoba.

She said: Honourable senators, I rise to address the Senate on
Bill C-14, the Manitoba Claim Settlements Implementation Act.
I am pleased to speak in support of this proposed legislation,
which will address outstanding commitments to Manitoba First
Nations and pave the way for greater economic self-reliance.

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My fellow senators will recall that when the government
unveiled "Gathering Strength: Canada's Aboriginal Action Plan,"
a commitment was made to renew the relationship with the
aboriginal people of Canada. That new relationship is being built
on a foundation of trust and cooperation between Canada and
First Nation governments and communities.

One of the first steps in building that trust is fulfilling our
historical obligations to aboriginal people. Bill C-14 will help us
do that for a number of Manitoba First Nations. Although this
legislation is technical, its overriding objective is simple: to
facilitate the implementation of a number of claim agreements in
Manitoba. In doing this, Bill C-14 will support a number of
specific commitments set out in "Gathering Strength." In
particular, it will strengthen the capacity of Manitoba First
Nation governments to make decisions about lands and monies
being provided under claim settlements in a way that is effective,
timely and accountable to their First Nation communities.

By overcoming obstacles that have slowed progress in the
past, Bill C-14 will foster economic growth and development.

Honourable senators, this bill consists of two important parts.
Part 1 deals with certain elements of the Master Implementation
Agreement signed by the Norway House Cree Nation in 1997.
This agreement, in turn, complements implementation activities
stemming from the 1997 Northern Flood Agreement through a
greatly clarified and minutely described assignment of roles and
responsibilities, as well as a compensation package including
enhanced commitments of the federal and Manitoba governments
and Manitoba Hydro respecting lands and monies. Part 2 relates
to the establishment of reserves in Manitoba under claim
settlements, including treaty land entitlement as well as the
Norway House and other such Master Implementation
Agreements.

Honourable senators, I should like to review the key elements
of Bill C-14 for those who may not be familiar with the proposed
legislation. As I have said, Part 1 is specific to a single Manitoba
First Nation, the Norway House Cree Nation. Specifically,
Bill C-14 will ensure that any lands provided to Norway House
in fee simple title under its Master Implementation Agreement
will not become special reserves under section 36 of the Indian
Act. This will enable the people of Norway House to use and
control these lands as they see fit, without the often burdensome
administrative requirements of the Indian Act and other federal
legislation when managing reserve lands.

In a similar vein, Bill C-14 will ensure that compensation
monies owed to Norway House under the Master Implementation
Agreement will not be administered as Indian monies under the
Indian Act. Instead, these monies will be paid to and
administered by a trust that has been established by the Norway
House Cree Nation and is operating under its direction, with
proper safeguards and accountability mechanisms in place.
Again, the Department of Indian Affairs and Northern
Development will have no role in managing these monies.

Honourable senators, these exemptions from the Indian Act
will have two strategic outcomes. Most important is the fact that
they will increase the Norway House Cree Nation's self-reliance
and decision-making capabilities. At the same time, they will
lighten the administrative load for the Department of Indian
Affairs and Northern Development.

Part 1 of this legislation will also give the locally administered
claims administration an arbitration process found in the Master
Implementation Agreement precedence over its counterpart in
the Northern Flood Agreement for claims that could be dealt
with under either agreement. The improved adjudication process
in the Master Implementation Agreement will thus be a direct
benefit in resolving these claims.

Finally, Part 1 of Bill C-14 will ensure that Canada and other
parties have access to the Manitoba Arbitration Act, which is
necessary when dealing with disputes under the Norway House
Master Implementation Agreement.

Honourable senators, the Norway House Cree Nation will also
benefit from Part 2 of this bill, which is intended to advance the
implementation of claim agreements in Manitoba by facilitating
the transfer of lands to reserve status. This First Nation will
benefit from Part 2, both in respect of the reserve creation
commitments contained in its Master Implementation Agreement
and in terms of similar commitments extended to it and other
Manitoba First Nations under the Manitoba Treaty Land
Entitlement Framework Agreement.

"Gathering Strength," the government's response to the Report
of the Royal Commission on Aboriginal People, calls for the
development of vibrant on-reserve economies. In order to help
these economies develop, we need to speed up the process of
establishing reserves. Part 2 of Bill C-14 will empower the
Minister of Indian Affairs and Northern Development to set apart
as reserves any of the lands selected by Manitoba First Nations
under a claim agreement. This will replace, for these claim
settlements, the lengthy and cumbersome process of obtaining an
Order in Council, which is the approach currently used to
establish reserves.

However, the main benefits of Part 2 of this bill will be to
establish more effective mechanisms for accommodating
third-party land interests that are identified during the process of
selecting lands for potential reserve creation pursuant to a
Manitoba claim settlement. It will also significantly reduce the
time required to add lands to reserves. We expect that this will
improve First Nations access in a reasonable manner to a broader
range of lands that have development interests or potential.

The sooner third party interests in lands can be resolved to the
mutual satisfaction of the third party and the First Nation through
a legally binding process, the sooner these lands can be added to
reserves and, in turn, the sooner they and the revenues they
generate can contribute to economic and social progress in the
community. The key to achieving this is to allow a First Nation
to consent to a third-party interest on lands it wants to add to a
reserve before those lands have actually been granted
reserve status.

Honourable senators may be surprised to learn that the
wording of the Indian Act simply does not allow for that. A
First Nation can only consent to the creation of interest on land
that is already part of a reserve, not on land that is simply being
proposed for reserve status.

Honourable senators, we should seize this opportunity to
remove this obstacle from the path of Manitoba First Nations.
Bill C-14 addresses this issue by giving Manitoba First Nations a
pre-reserve designation power as well as a power to ask the
Minister of Indian Affairs and Northern Development for, and for
the minister to then issue, before reserve creation, a land use
permit — both powers being aimed at accommodating different
kinds of third-party interests.

Honourable senators, these pre-reserve powers will not only
apply to existing interests but will also allow a First Nation to
negotiate new rights that will come into effect upon reserve
creation. This will ensure that First Nations can take advantage
of emerging development opportunities on their selected lands
even before reserve status is granted.

As I noted earlier, it has been the shared desire of Canada, the
Government of Manitoba and the First Nations to expedite the
settlement of treaty land entitlements. At the same time, these
mechanisms will, on the initiative of individual First Nations, be
made available to facilitate implementation of all other Manitoba
claim settlement agreements, existing or future, that involve
additions to reserves.

Honourable senators, this proposed legislation does not create
new entitlements for First Nation governments. It does not
impose new obligations on Canadian taxpayers. In fact, it will do
the opposite by speeding up the process of reserve creation.

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It also establishes clear-cut legal mechanisms for
accommodating both third party and First Nation interests in
lands selected for addition to reserves pursuant to claim
settlements in Manitoba.

This bill will move Canada forward in fulfilling its obligations
to aboriginal people, strengthening the capacity for First Nation
decision-making, respecting settlement lands and monies and
improving socio-economic conditions on reserves. It deserves
our support.

Senator Watt: The honourable senator talked about additions
to existing reserve land. Could she expand on that subject? What
does it mean? Would it enlarge a reserve from its present size?

If the honourable senator does not feel comfortable answering
my questions today, and if the bill is to be referred to committee,
then I will await the committee's study of this bill.

Senator Chalifoux: I thank Senator Watt for his questions.
I would prefer that his questions be asked in committee. The
honourable senator's questions are interesting and important,
and I would not want to reply with something that may not be
quite right.

Hon. Janis Johnson: Honourable senators, it gives me great
pleasure as a senator from Manitoba to speak to the second
reading of Bill C-14.

This bill has been a long time in the making. It was before
Parliament in the last session as Bill C-56 but died on the Order
Paper when the session ended. We now have it before us at a
critical time. The call of a federal election looms, and unless we
push the bill along, it will again die on the Order Paper, and I
will have to get up and speak to it again. Thus, perhaps it is a
good idea to pass it at this time. I, for one, do not want to see that
happen. The bill should be referred to the Standing Senate
Committee on Aboriginal Peoples. We must be diligent in
protecting the role of the Senate and its right to give this
legislation sober second thought. At the same time, if this bill
deserves to pass, and I believe it does, then we should be
practical and ensure its passage before an election call, for we
owe this to those who are affected most, the Norway House Cree.

Having said that, I believe the government must explain to the
committee why it joined together in this bill two completely
different concepts. Some in the other place have called it an
omnibus bill, and would have preferred the two subjects to be
separate so they could receive scrutiny on their own merits. What
are these two disparate concepts or issues? In Part 1, the bill sets
out the legislation necessary to implement the master agreement
negotiated among the government and four of the five affected
aboriginal groups when the Churchill Falls hydroelectric project
began in 1970 and aboriginal lands were flooded. I have seen
those lands. The hydroelectric project flooded approximately
12,000 acres of northern Manitoba First Nation reserve land and
525,000 acres of non-reserve land used by First Nations.

The second part of the bill addresses the federal government's
commitment to increasing the First Nations reserve land base in
Manitoba. When a First Nations group of Manitoba agrees, this
part facilitates the implementation of a land claims settlement in
which the federal government increases the reserve land base.
The minister is able to confer reserve status and the First Nation
is able to create or accommodate existing third-party interests on
the reserve land. The key here is to allow a First Nation
to consent to a third-party interest on land it wants to add to
the reserve before those lands have actually been granted
reserve status.

The current wording of the Indian Act does not allow for such
agreements. The legislation will aid everyone in bringing some
creativity to the land acquisition process, as the land can be
acquired for a reserve even though a third party still occupys part
of it. The First Nations group knows it can acquire the land for a
reserve and the third party knows it can still continue to
live there.

Therefore, on the surface, this seems like a good law in the
making. However, after some research and discussion with those
aboriginal groups concerned with Part 1, I have some questions
concerning the adequacy of the amounts of money to be paid
under the Master Implementation Agreement. Also, concern has
been raised as to the ratification process used to secure approval
for the agreement that underlies this proposed legislation.

With regard to Part 2, honourable senators, I wish to be sure
that the land that will be provided is suitable for use as a reserve.
I also want to know how close we are to the achievement of
self-government for all aboriginal nations in Manitoba. I believe
in the concept of self-government for Canada's aboriginal
peoples, but self-government works best when a viable,
productive land base can be secured for our aboriginal people.
This bill is an attempt to achieve some certainty in the process,
but does it bring us any closer to self-government for all
land-based aboriginal peoples in Manitoba?

Since we will be talking in the committee hearings about
aboriginal people in Manitoba, I will want to put some questions
regarding the problems faced by urban aboriginals, especially
those resident in Winnipeg, for I know it is a subject that our own
committee will be addressing in the future.

I look forward to the committee discussion. I believe we
should be able to report the bill to the Senate in time for it to pass
before the end of this Parliament. I ask for the cooperation of all
honourable senators.

(b) by renumbering sections (1) and (2) and all
cross-references thereto accordingly.

2. The Rules of the Senate are amended by adding the
following after rule 26:

QUESTION CONSIDERED

26.1(1) Immediately after the government of a
province tables in its legislative assembly or otherwise
officially releases the question that it intends to submit
to its voters in a referendum relating to the proposed
secession of the province from Canada, motions to
refer the question to Committee of the Whole for
consideration and report may be moved without leave
at the next sitting of the Senate, and, if moved, must be
considered and disposed of in priority to all other
orders of the day.

CLEAR MAJORITY CONSIDERED

(2) Immediately after the government of a province,
following a referendum relating to the secession of that
province from Canada, seeks to enter into negotiations
on the terms of which that province might cease to be a
part of Canada, motions to refer the subject of the
clarity of the majority achieved in the referendum, to
Committee of the Whole for consideration and report
may be moved without leave at the next sitting of the
Senate, and if moved must be considered and disposed
of in priority to all other orders of the day.

ORDER OF BUSINESS

(3) Notwithstanding rule 23(8), the Speaker shall
call for motions under this rule as the first item of
business after question period.

PRIORITY

(4) In Orders of the Day, motions shall be considered
and disposed of in the following order: a motion, if
any, by the Leader of the Government; a motion, if any,
by the Leader of the Opposition; motions, if any, by
other Senators.

DEEMED DISPOSITION

(5) Only one order of reference at a time may be
made under subsections (1) and (2), and as soon as an
order of reference is adopted, with or without
amendment, the remaining motions fall from the order
paper.

TRANSMISSION OF FINDINGS

(6) When the Senate adopts a resolution in respect of
a report received and considered under subsection (1),
which shall be within 15 days of the commencement of
proceeding under subsection (1), the Speaker of the
Senate shall transmit copies of the resolution and of all
proceedings held under this rule in the Senate and in
Committee of the Whole, including an integral copy of
every representation made under this rule, to the
Speaker of the House of Commons and to the Speakers
of each provincial and territorial legislative assembly
in Canada.

PROVINCIAL REPRESENTATION

(7) Where an order is made under subsection (2), the
Clerk of the Senate, immediately following the
adoption of the report, shall invite the government of
every province and territory to make verbal or written
representations to the Committee of the Whole, and
every province and territory that replies in the
affirmative shall be given reasonable opportunity to
do so.

MINORITY REPRESENTATION

(8) Where an order is made under subsection (2), the
Committee shall decide which representatives of the
Aboriginal peoples of Canada and of the English and
French linguistic minority population of each province
and territory should be invited to make verbal or
written representations to the committee, and every
representative who replies in the affirmative shall be
given reasonable opportunity to do so.

TRANSMISSION OF FINDINGS

(9) When the Senate adopts a resolution in respect of
a report received and considered under subsection (2),
which shall be within 15 days of the commencement of
proceedings under subsection (2), the Speaker of the
Senate shall transmit copies of the resolution and of all
proceedings held under this rule in the Senate and in
Committee of the Whole, including an integral copy of
every representation made under this rule, to the
Speaker of the House of Commons and to the Speakers
of each provincial and territorial legislative assembly
in Canada.

He said: Honourable senators, I am sure that it is not necessary
to revisit in detail one of the most historic debates ever held in
this chamber, namely, the debate on Bill C-20, to give effect to
the requirement for clarity as set out in the opinion of the
Supreme Court of Canada in the Quebec Secession Reference, a
debate that concluded with the adoption of legislation earlier in
this session of Parliament.

Honourable senators will recall that one element of the debate
which seized the attention of all honourable senators in all parts
of the house dealt with the manner in which, in our bicameral
system, the Senate of Canada would be called upon to express its
view on the clarity of a reference question brought forward by a
province or the clarity of the result of a referendum on that
question and the matter of negotiations.

Many honourable senators were uncomfortable with that part
of the bill. I believe all honourable senators had concerns about
that question. The fact is that Bill C-20 is now the law of the
land, and everyone in this house accepts it as such. That does not
leave members of this house without a margin of
manoeuvrability in ensuring that the exigencies of the bill as it
relates to the Senate would be responded to by the Senate with
the greatest degree of seriousness. It seems to me that we should
use our rules, of which we are masters, to ensure that the opinion
of the Senate is taken into consideration by the House of
Commons, should a resolution from a legislative assembly come
forward as envisaged by Bill C-20.

Focusing for a moment just on the referendum question, as
you will recall, honourable senators, from the time a resolution is
brought forward by a legislative assembly, the House of
Commons has 30 days to make a determination on the clarity of
the question. The law does not envisage a requirement for the
Senate to exercise its judgment; rather, the law provides that the
House of Commons shall take into consideration the views of the
Senate. This motion attempts to ensure that we not lose any time
in the Senate in formulating our view so that our view will be
before the members of the other house with sufficient time for
them to seriously consider it.

This motion is quite simple. It would be deemed to be an order
of the house that a resolution on the clarity of the question is
subject to debate immediately. There would be no delay. It would
have priority in procedure. Within 15 days the Senate will have
adjudicated on the clarity of the question and will have sent to
the other place, by formal message, the Senate's view on the
clarity of the question. In other words, we will have ensured that
the Senate's view on the proposed referendum question is in the
hands of the members of the other place a full 15 days before
they have to conclude their deliberation.

This is not our preferred approach, honourable senators, but
we have the law and we can use our rules to ensure the next best
thing — that is, to have the opinion of the Senate formulated,
expressed and formally sent to the other place within sufficient
time that the other place will be able to seriously consider the
opinion that the law requires them consider. That model would
apply not only to the referendum question but also to the clarity
of the referendum vote.

In terms of process, should this motion find favour, I would
envisage it being referred to the Rules Committee for study
in detail.

Senator Austin: Could the honourable senator explain
two items? What is the rationale for the system of priority in
motions under Orders of the Day outlined there? How do you
require the Senate to adopt a resolution within 15 days or at any
time? How do you require the Senate to do that in advance of the
debate and its own process for coming to a conclusion?

Senator Kinsella: I would hope that the provisions that are
laid out in the motion would achieve that objective. If there is a
technical difficulty in doing that, then this matter should be
referred to the Rules Committee so that it can answer that
question. The objective that I was trying to achieve is that which
I have outlined.

Four priorities have been mentioned. In Orders of the Day,
motions shall be considered and disposed of in the following
order: a motion, if any, by the Leader of the Government; a
motion, if any, by the Leader of the Opposition; motions, if any,
by other senators. The motion would be a priority motion. In
other words, the Senate would be seized of the matter to get the
debate started immediately. The objective is to have the Senate
take into consideration, immediately, a referendum question, to
reach a conclusion within 15 days and to make that conclusion,
namely the opinion on the referendum question, available. That
is what is intended. Technically, if it does not achieve that
purpose, I know the Rules Committee would find the right words
to have that objective achieved. That is the objective.

Senator Austin: My understanding of subclause (4) — and I
should like to be corrected if my understanding is wrong — is
that the government would have the first opportunity to propose
the terms and text of the motion. It would be dealt with in
priority to any proposals from the opposition side or from any
other senator. Following that, the procedure would be that the
first vote would be on the government motion. If there were a
successful vote in this chamber, then all others would be
stood aside.

Senator Kinsella: Yes.

Senator Austin: Is that an explanation of the proposal?

Senator Kinsella: Yes.

Senator Austin: On the other question, I wonder why the
honourable senator sees the need to anticipate the circumstances.
If this situation actually were to arise, does he not believe that the
Senate of the time would move expeditiously? Why does the
honourable senator want to set an order at this stage to bind a
future Parliament as to when the Senate might deal with
this question?

Senator Kinsella: That is an excellent question and does
indeed speak to a major part of the motivation, that the Senate
not have to accept a process that excludes the Senate or has
emasculated the Senate, in the views of many. This rule would
make it perfectly clear that the Senate is part of the bicameral
Parliament and that we will use our rules to protect the rights of
the Senate without offending the statute that now forms part
of the law.

In my judgment, that is extremely important in terms of the
standing of the Senate in our bicameral system. We all
understand the difficulties of amending a piece of legislation and
the dynamics that surround the process. We all could probably
envisage, under circumstances different from the circumstances
that we faced months ago on that bill, that it might have been
amended. To answer the question, the motivation is principally to
re-establish the place of the Senate in our bicameral system.

Hon. Nicholas W. Taylor: Honourable senators, I should like
to continue the process further. I have been interested in past
debates in the place of the Senate with regard to action under the
clarity bill. Senator Austin's point is a good one, keeping in mind
the mechanics that we now have in the House and that a motion
for secession coming from a province would likely be opposed
by the government of the day. Senator Austin's point that it might
be gilding the lily is well taken.

I thought of another possibility that is not altogether
impossible, namely that the government of the day might favour
the province that wants to separate. We have heard that from
some of our political parties recently, and two arguments make it
whole. The first is that if you do not like it here, goodbye and
good riddance, and the second is that we would like a loosely
constructed confederation.

However, if the government of the day is supportive of the
referendum idea put in the bill, is there any way that the Senate
minority can, under present-day rules, without the honourable
senator's motion, force a debate on the matter in Parliament and
push it through in time? That might be an argument in favour of
the motion.

Senator Kinsella: I believe the act currently provides that the
minister in the other place must table some sort of resolution
dealing with the clarity of the referendum question put by
whatever legislative assembly. That is why I envisage that it
would be the Leader of the Government in this house who would
table a parallel motion. I am not sure how it would actually
be drafted.

The act requires the House of Commons to express an opinion
as to whether or not they think the question is clear enough for
them to say to the government, "Yes, and if step two and three
are followed, then you can negotiate." If it is not clear, then they
will say, "It is not clear," and there will be no obligation to
negotiate secession.

The resolution tabled here by the Leader of the Government
would be the same as the resolution that the minister would have
already tabled in the other place. They will have our views as
senators, and not at any old time. It is sort of like pre-study.
Pre-study only makes sense if the pre-study is done before the
committee stage has been concluded in the House. The technical
intent here is to find a way in which we will express our view in
sufficient time that it will be meaningful.

The Hon. the Speaker: Honourable Senator Kinsella, I regret
to interrupt you, but your 15 minutes has expired. Are you
requesting leave to continue?

Senator Kinsella: I will request leave, yes.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Yes.

Senator Taylor: Honourable senators, I am still not sure that I
have an answer to my question. I am concerned about a situation
where, through negotiations or through discussions between the
government of the day and the government of the province that
wants to put forward a referendum about secession, they have
reached agreement before it even gets to the House.

(1520)

That is not impossible with some of the political parties on the
scene today and the government. They may already have
agreement, and they will then also control the government in the
Senate. As Senator Austin points out, if the government of the
day opposes the referendum, my honourable friend's motion
would be redundant because the government could place the
question on the agenda the next day. However, the government of
the day may be asleep at the switch or stupid, or maybe it has
made a deal with the government of the province that is talking
about seceding. That is what I wanted to know, namely, whether
this motion is any better than what we have now to bring a clarity
debate to the Senate floor.

Senator Kinsella: As the honourable senator might recall,
during the debate on Bill C-20, we heard some argue — and, if
the record is checked, the Leader of the Government in the
Senate argued — that the Senate did not have to be included.
Many honourable senators on both sides did not agree. The intent
of this motion is to have the Senate seized of the proposed
referendum question in a timely fashion and ascertain whether or
not it is clear as provided by Bill C-20, which is now the law.
Subclause 9 of the motion is the key clause, namely, that the
Senate adopt its resolution within 15 days of the commencement
of proceedings. To commence the proceedings forthwith, we give
priority to the motion either brought in by the Leader of the
Government, the Leader of the Opposition or another honourable
senator, in that priority, in order that it is dealt with and placed on
the Order Paper. That is the intent and the drafters of the motion
have captured it. I did not draft the motion, as most of us do not
do technical drafting, which is why we go through these motions
in committee with a fine-tooth comb.

Senator Austin: Honourable senators, speaking for myself, I
question the need for the rules to be changed in this fashion at
this time. I also question the process, but I have no objection to
the reference to the Rules Committee. It will certainly provide us
with interesting discussion if the Senate so decides.

The Hon. the Speaker: Does any other honourable senator
wish to speak? If not, is it your pleasure, honourable senators, to
adopt the motion?

Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, pursuant to an order of this house, the
Senate will resolve itself into Committee of the Whole at 4 p.m.
We have completed the business of the Order Paper. Accordingly,
I request leave that the Senate adjourn during pleasure. The
difference between adjourning during pleasure and suspending is
that if we suspend, someone will have to sit in the Chair. If we
adjourn during pleasure, then Senator Moore will not have to
stay in the chamber. Perhaps I could ask for leave to adjourn
during pleasure until 3:50 p.m., at which time the bells will ring
for 10 minutes to call senators back to the chamber.

The Hon. the Speaker: The bells will ring at 3:50 p.m. until
4 p.m., at which time the Senate will resolve itself into
Committee of the Whole.

Appointment of Mr. George Radwanski—Considered in
Committee of the Whole

On the Order:

The Senate put into Committee of the Whole in order to
receive Mr. George Radwanski on the matter of his
appointment as Privacy Commissioner.

The Senate was accordingly adjourned during pleasure and put
into Committee of the Whole, the Honourable Rose-Marie
Losier-Cool in the Chair.

[English]

The Chairman: Before we begin, may I bring your attention
to rule 83, which states the following:

83. When the Senate is put into Committee of the Whole
every Senator shall sit in the place assigned to that Senator.
A Senator who desires to speak shall rise and address the
Chair.

The last time Commissioner Phillips appeared before us, this
rule was waived. Is it your pleasure, honourable senators, to
waive rule 83?

Some Hon. Senators: Agreed.

Senator Prud'homme: No!

The Chairman: Rule 83 stands, then, honourable senators.

Senator Prud'homme: No one told me that there was a
preference to proceed otherwise. If you were to revert back to the
question now, I would agree because it changes a few projects.

The Chairman: Is it agreed, then, that the rule is waived?

Hon. Senators: Agreed.

Pursuant to Order of the Senate, Mr. George Radwanski was
escorted to a seat in the Senate chamber.

[Translation]

The Chairman: Mr. Radwanski, I welcome you on behalf of
all the senators.

[English]

Mr. Radwanski, do you have an opening statement?

Mr. George Radwanski, Interim Privacy Commissioner:
Honourable senators, I thought I would make some brief remarks
to allow the maximum possible time for a discussion and
questions.

First, I would like to tell you briefly about myself. Some of
you may have seen my biography but one takes nothing for
granted. I am originally a Montrealer and spent the first part of
my life there. I studied at McGill University, where I obtained a
B.A. and a law degree.

[Translation]

I speak French fairly well, although I have forgotten it a bit
with my years in Toronto, but it is coming back quite quickly
now that I am here. For the time being, I will speak English.
If you wish to put questions to me in French, I understand French
perfectly.

[English]

During my studies — and more or less by accident — I
drifted into journalism as a reporter at theMontreal Gazette.
Consequently, by the time I was in law school I was the senior
staff writer on theMontreal Gazette so I decided to stay at it for
a while and see where that particular train would take me. As a
result I became a columnist on national affairs for the Montreal
Gazette in Ottawa and then Ottawa editor and national affairs
columnist for the Financial Times of Canada. Following that, I
went to TheToronto Star as editorial page editor and
subsequently became editor-in-chief. After that, I had occasion to
do several policy studies for the Government of Ontario. The
first was the Ontario study of the service sector looking at the
whole issue of the post-industrial economy; the second was a
review of education in Ontario and, by extension, in Canada. I
have also written a couple of books in the intervening years since
I left The Toronto Star. I worked as a consultant. Several years
ago, I had the privilege of heading the Canada Post mandate
review.

A common theme throughout these years has been an
involvement in public policy and in the issues touching on our
country. In everything I have done throughout these years, I have
tried to make a contribution to this country and to make a
difference on the issues.

That brings me to the present and to the great privilege I have
had, since September 1, of serving as Interim Privacy
Commissioner. I use the word "privilege" very advisedly. It is
very much my view that privacy is fundamentally important in
international life. It is a fundamental issue of human freedom. If
people have occasion, either literally or metaphorically, to feel
that someone is looking over their shoulder and that their private
actions are being observed or are in danger of becoming public,
it constrains freedom of choice. Violations of privacy have had
increasingly severe consequences. As important as privacy has
been, I believe that it will become a vastly more important issue
in the years ahead and, in particular, in the coming decade. I say
that because, in many respects, until recently, privacy has been
protected somewhat by default in the sense that the means to
violate privacy were comparatively limited. Now, however, with
new means of surveillance and with all the advantages and
advances in digital technologies, in science pertaining to DNA,
ethics, and so on, the issues are rapidly multiplying and the
fundamental human value of privacy can only be protected by a
conscious effort to do so and by real vigilance every step of
the way.

It is in that context that I feel an enormous sense of privilege
in being able to make a contribution on this issue. If it is the will
of Parliament, the will of the Senate, that I continue in that role
as the permanent, full-time Privacy Commissioner, you can be
assured that it is an issue that I regard with the utmost
importance, and I will deal with it in an ongoing way to the
utmost of my abilities, conscious that it is a trust that is
fundamental to human values and human freedoms in
this country.

(1610)

That being said, I would be happy to answer your questions or
engage in any discussion. I would ask honourable senators to
keep in mind that I have been at this job for barely over a month.
On some issues the learning curve is steep and there may be
things at which I am not fully expert yet, although I fully intend
to be in a short time.

Senator Murray: Mr. Radwanski, did you apply for the job
of privacy commissioner?

Mr. Radwanski: I did not, senator. The question was put to
me whether it would be something of interest and eventually I
was offered the position.

Senator Murray: The question was put to you by whom?

Mr. Radwanski: The people whose role it is to put such
questions.

Senator Murray: The government, the ministers. This is not
your fault, but there is some considerable concern that the
consultation process was, to put it mildly, inadequate. I will not
ask you to comment on that. As I say, it is not your problem but
it is ours, and I want to have that on the record.

I am rather bemused by the fact that you are the second former
journalist in a row to be nominated for the post of Privacy
Commissioner.

Mr. Radwanski: The third, actually.

Senator Murray: The right of people to their privacy is not
necessarily at the top of the list of priorities of people in your
profession normally and, that being said, I think it is generally
agreed that your predecessor, also a former journalist, did a
good job.

I wish to ask you about something in particular. A few months
ago we passed Bill C-6 — I believe you are familiar with that
act as it is now — to protect the privacy of personal information
that is collected for various commercial purposes. In that act, the
government — Parliament eventually — provided an exemption
for personal information collected for journalistic purposes;
indeed, journalistic, artistic or literary purposes. Can you explain
the principal justification for that exemption? Do you agree with
that exemption?

Mr. Radwanski: I would be happy to answer that question.
Let me first go back to your previous remark about the
interrelationship between being a former journalist, since I have
not been one since 1985, and this position. I wish to assure you
that the fields of journalism in which I was engaged had no
interest in invading anyone's privacy. Those fields dealt with
informing Canadians, to the best of my ability and through my
leadership at the newspaper I headed when I was editor of TheToronto Star, about the issues of our country.

Is journalism a good background for this position? Speaking
for myself, it probably is. The experience I had as a journalist
was in getting to the bottom of things one might otherwise not
know much about, asking the right questions, and hopefully
coming up with answers that made some sense. The information
was then communicated to the public at large in a way that could
be readily understood and would hopefully have some impact on
the public consciousness. I believe that is closely related to the
kind of job that the Privacy Commissioner — being essentially
an ombudsman function, not an enforcement function — should
be carrying out. Therefore, I do feel that this part of my
background, as well as my involvement in public issues, has been
good training.

On your question about the exemption for journalism, frankly,
yes, I agree. Obviously, I had no hand in drafting the legislation,
but I do not believe we could have a free press without that
provision. Otherwise it becomes too easy to say that a great many
things that are of public interest from the point of view of
understanding what is going on in this country are personal
information in the broad sense of the word. Speaking not as a
journalist but as someone concerned about public policy, without
that provision we would have a controlled and constrained press
that would be inimical to a fully functioning democracy and
subject, I might add, to the fact that we do have libel laws that
provide a measure of protection.

Senator Murray: Libel laws provide protection if a
complainant has been effectively lied about or slandered in the
media. Do you agree that there is a balance to be struck between
the right to freedom of the press and the right to privacy?

Mr. Radwanski: There is in every realm that touches on
privacy. In fact, I would argue that there are balances to be struck
in every realm of life in our society. There are other
self-disciplining mechanisms that are not always perfect. For
instance, there are press councils. In this country there is also the
issue of public opinion. This is a country that does not place a
high degree of enthusiasm on egregious violations of personal
privacy by the media, broadly speaking, so there are disciplines.

Could there be discipline beyond trusting the media to strike
the right balance? I would be worried about that, frankly, because
freedom of the press is fundamental. I cannot say that I see
anything that has occurred that would justify a need for
legislative constraints of any kind.

Senator Murray: Would you agree that to support the
entrenchment in the Charter of a right to privacy, thus putting the
right to privacy on the same basis as the right to freedom of the
press and freedom of expression, that the right balance would
need to be struck?

Mr. Radwanski: As I said, senator,there are always balances.
Personally, I would be uncomfortable with legislated constraints
of any kind on a free press.

Senator Murray: What about a right to privacy in the
Charter? It has come up before.

Mr. Radwanski: You used the word "balance" yourself. In my
view the right to privacy is a fundamental right, like many other
rights in the Charter.

Senator Murray: The point is that it is not in the Charter.
Would you favour its entrenchment in the Charter?

Mr. Radwanski: Oh, I do. I believe Senator Finestone's
legislation is an excellent initiative. The senator has been a good
friend to privacy. Noting the importance of privacy as a
fundamental right would be, if anything, long overdue. My office
has argued for that in the past and I fully support it, but it is not
a right that transcends all other rights.

Senator Murray: No, and neither does the right of freedom of
the press. This is the problem.

Mr. Radwanski: That is correct.

Senator Murray: Some people act as if freedom to collect
and disseminate information trumps all other rights.

Does a person's right to privacy die with him or her?

Mr. Radwanski: I knew we would get to that issue. Let me
answer obliquely in the first instance. I would say that a person's
right to have a formal legislated commitment made by the
Government of Canada does not die with them.

Senator Murray: Mr. Radwanski, I come back to a provision
in Bill C-6 that allows for the disclosure of information, which is
collected for commercial reasons, 20 years after one's death.

Mr. Radwanski: Right.

Senator Murray: This information might concern one's credit
card, one's mortgage, or any information collected for personal
reasons and which may be disclosed, subject to certain broad
guidelines, 20 years after one's death. I was not able to get
anyone to provide a principal justification for that provision other
than to say that, "Well, we have that kind of provision in the
Privacy Act with regard to government information." That is
another issue. I am talking about information that is collected on
you and me for commercial purposes.

(1620)

I am appalled to think that such information can be disclosed
20 years after one's death, because of a provision in the act.
What I want to know is what you think of it and whether you are
prepared to urge the removal of that provision from the law.

Mr. Radwanski: Let me put it this way, senator. I would want
to be a little careful in making a categorical statement, simply
because I do not know at this time what the rationale was for
putting in such a provision, and I would want to know that. If
you ask my general opinion, then I agree with you. There are not
too many instances that come to my mind as to why it would be
socially important or in any way desirable to be able to release
that kind of information 20, 30, or whatever number of
years after.

A general principle which I think is a good one with regard to
privacy is that incursions into privacy or violations of privacy
should be only to such an extent as can be justified by an
explanation or a reason for them. In principle, yes, I agree with
your concern, senator.

Senator Murray: Then I invite you to discuss Senator Milne's
Bill S-15.

The Chairman: Honourable senators, I should like to remind
you of rule 84, which states that during debate in Committee of
the Whole no senator shall speak for more than 10 minutes at any
one time. I shall try to adhere to that rule as much as possible.

Senator Milne: Mr. Radwanski, to be fair to you, I shall try to
repeat pretty well what I asked your predecessor when he
appeared before us on several occasions. I wish to talk about
historic censuses.

Over the course of the past 100 years there has been a balance
in Canada between the right to privacy and the right to use
personal information for historical research. I am very certain
that the original position of your predecessor, Mr. Phillips, was
based on an opinion by lawyers in the Department of Justice that
was, I believe, fundamentally flawed. Statistics Canada had
asked for this opinion. It is too bad that the Department of Justice
lawyers were in too big a hurry, because if they had read just
another few pages on, or even a few lines further on, they would
have found in the 1906 instructions that the census takers were
directed to write clearly because the census was intended to form
a permanent record to be held in the archives of the Dominion.
At that time, everything that was held in the archives was public.
Nothing was sequestered.

It is quite clear that the lawmakers and legislators of that time
meant that to be a permanent and, eventually, a public record.
The implicit intent was that the census would eventually be open
to the public. This balance between a right to privacy and the
right to historic census data was debated again in 1983, when the
act establishing your position was set up.

I have reason to believe that Mr. Phillips' position on the
release of the historic census had recently changed. It had been
changing over the past two appearances that Mr. Phillips made
before us, and I believe over the summer it was still changing. I
want to know your position on the release of historic census data.
Do you hold the same position as Mr. Phillips originally held; or
do you intend to change the position of your office on this issue
as he was in the process of doing?

Mr. Radwanski: Thank you for that question, senator.
I imagine you will forgive me if I do not respond in terms of my
predecessor's position but simply confine myself to telling you
my own thoughts on the matter.

First, with regard to the point you raise about the 1906
precedent and so forth, I think a case can be made for the
censuses up to 1916 on that basis. However, speaking for myself,
my concern is that post-1916 there was an explicit legislated
promise of confidentiality, and —

Senator Milne: Again, in the instructions to the census
takers —

Mr. Radwanski: Senator, I am sure we could have a good
debate on that point. My own sense is that Canadians filled in
those forms on the basis of a belief that they were confidential
and that the government had promised confidentiality. I have a
concern in principle about the Government of Canada's giving its
word and then breaking it.

Is that a narrow privacy concern? No, it is not. Speaking as an
individual, and regardless of the passage of time, it simply
bothers me that people could be induced to take a certain course
of action and then have the Government of Canada, the highest
authority in the land, say, "Well, the commitment we gave does
not really hold, whether years have passed or not." That is my
fundamental difficulty with that issue.

As to my position in my office, I believe, as certainly has my
predecessor, that the compromise position that was worked out is
a reasonable compromise. I met at some length with the Chief
Statistician, Dr. Fellegi, and he, by virtue of his responsibility
for the census, also believes that that is a good and reasonable
compromise. Frankly, I was also quite impressed with his
concerns that a different position could compromise the integrity
of future census data collection.

That is my position. My position is in support of the
compromise arrangement.

[Translation]

Senator De Bané: Regarding Senator Murray's question to the
effect that we could, under the present circumstances, release the
personal information on someone 20 years after the death of that
person, I thought you agreed with Senator Murray that
information of a personal nature should not be made public even
50 years or more after a person's death.

Do you not think that historians have an interest in telling us
about an anonymous person who is deceased, for example, a
prime minister of Canada who died 50 or 100 years ago and who
failed to pay his creditors? Do you not think that this is
something that may be of interest to historians? While it may be
of no interest in the case of anonymous people, it may be of great
interest in the case of such a person to know that this person did
not honour his or her personal commitments.

I find it hard to agree with Senator Murray's opinion — which
you share — that the details of people's private lives, regardless
of the role they may have played in society, are of no interest,
even decades after their death.

Mr. Radwanski: That is a very good question.

[English]

think that is a very legitimate question. That is why in some
parts of the legislation, as Senator Murray mentioned earlier,
there are exceptions drawn for literary works, for journalistic
activities and so forth. Certainly, the work of an historian could
qualify in those cases under some of those headings.

I do not have an absolute view on this very fair question. It is
a matter of balance. I will not purport to have a final answer on it
after a month on the job. However, I think it is fair to ask even
then: Are some details of a person's personal life really
historically interesting or is dirt, or private information that
should remain private, still that 20, 30 or 50 years later? There is
a balance to this, and whether, for instance, a former leader's
credit card information would be any more important as an
historical record 20 or 50 years after his death than earlier,
I would have to be persuaded, to be honest with you.

(1630)

We are not talking about general information, and there are so
many sources of information in the world these days. Does data
that is by its nature personal become less personal if you are
famous? I am thinking out loud here and would not want to be
held to a final position on this, but if you go that route, how
famous do you have to be for that to be the case? Does being a
senator expose you to that degree of posthumous scrutiny, or
does being a successful business person? Does having once
written a famous letter to the editor have that effect?

Very complex questions are raised the moment one starts
saying that, if you are well known, your fundamental privacy
rights are somehow diminished. There is a legitimate question of
public interest that is raised as a defence, as I said earlier, in libel
cases, and the courts have been quite good at drawing that
distinction. However, does every bit of otherwise private
information about an individual become fair game? My honest
answer is that I would have to think about that.

Senator De Bané: Thank you very much. I agree with those
who say that the right to be left alone is a very important thing
and that each of us is entitled to privacy. We all know that
governments and large corporations today, particularly with
computers, et cetera, can have access to the records of every trip
we have taken, every phone call and every financial transaction
we have made where we have not paid cash.

Did you have time, Mr. Radwanski, to look into the extent
that the federal government and the provincial governments
match their information in order to have a more comprehensive
view of the personal data of each Canadian?

Mr. Radwanski: I have not made an exhaustive study of that
personally to this time. However, my office has been very
concerned with that issue for some time. As you know, the whole
HRD situation was a classic illustration of that. My predecessor
publicly raised the concern precisely about data matching. You
are quite right that different parts of government, different
governments, and different outlets in the private sector have
pieces of information. Most of these pieces are legitimately
gathered for a specific purpose because a given service could not
be provided without them. For instance, if you are going to get
certain benefits, the benefit-issuing authority has to know who
you are, what your situation is, and so forth. The fundamental
danger to privacy arises when the information gets put together
in ways that were not justified by the original purpose and that
become a comprehensive database about an individual, which
was the case, at least to a very considerable degree, with HRD.

As a result of the intervention of my office prior to my being
there, and as a result of the fact that we have a vibrant privacy
commissioner function, that problem was brought to light and the
base was dismantled. The information has been returned to the
originating departments that have legitimate uses for it.

I believe that is the kind of issue that we will encounter more
and more with regard to both the government and the private
sector. It is a crucial part of the responsibilities of the privacy
commissioner to be vigilant in ensuring that information is used
only for the purposes for which it was gathered, that only such
information as is needed legitimately for identified purposes is
gathered, that it is stored in ways that protect the integrity of the
data, and that we do not get into forms of data matching which,
by their very nature, are intrusive on an individual's privacy and
can cause no end of serious problems.

I do not know whether I have fully answered your question,
but I certainly share the concern you have expressed.

Senator Kinsella: Mr. Radwanski, did you ever apply for the
editor's position at the McGill Daily?

Mr. Radwanski: I do not know that it would be correct to say
that I applied. I was more or less, shall we say, railroaded into
being a candidate for election to that position. I took the view
that it should not be an elected position and did not run, but some
people campaigned on my behalf. It is my eternal good fortune
that I lost, because, had it been otherwise, I might not have had
the opportunity to do various other things that I have done in
my career.

Senator Kinsella: Given that we are now in the sphere of
academia, what is your view on plagiarism and privacy?

Mr. Radwanski: Could you be a little more specific? I am not
sure I see the connection that you are making.

Senator Kinsella: Let that be a question. Do you see any
question between privacy and plagiarism as an attack on privacy?

Mr. Radwanski: Not off the top of my head. I would have to
reflect on what connection there might be, but off the top of my
head I would say that plagiarism certainly is a form of
misrepresentation, if you will, and it may be a form of
information theft. I do not know how plagiarism would directly
relate to privacy, but I am certainly open to being informed or
persuaded otherwise.

Senator Kinsella: When you were in the practice of
journalism, did you ever reveal the identity of a confidential
source? Did you ever report on something that, in retrospect,
should have been a private matter?

Mr. Radwanski: Did I ever reveal the identity of a
confidential source?

Senator Robichaud: That is a private matter.

Mr. Radwanski: I will answer the question. I never revealed
the identity of a confidential source. There was an instance when
I was at the Gazette where I did a lengthy investigative article
with regard to a judge who behaved in such extraordinary ways
on the bench that lawyers were refusing to appear before him. I
looked into why that was the case and did an extensive article on
the matter. In the course of that work, I did obtain some
confidential information. The judge subsequently sued the
Gazette and me. The confidential source was one that I protected
to the end. The Gazette's lawyers persuaded that source that in
the interest of the administration of justice, particularly ensuring
that the behaviour of the individual in question was not
vindicated, there was a greater good in his allowing himself to be
identified, and that individual gave his consent.

I personally never violated confidentiality. I would have gone
to prison, if need be, rather than do so. It did not arise in that
instance, but, no, my word on any matter is good.

Senator Kinsella: So do you think that privacy is a little more
than a relativistic analysis?

Mr. Radwanski: I am troubled by the way you went from that
previous question to "So do you think."

Senator Kinsella: Wait until you hear my next questions.

Mr. Radwanski: In answer to your first question: relativistic,
no. Are all rights in a society relative to some extent? Yes, of
course. The only way to be absolutely private is to live alone on
a mountaintop. Even then, with aircraft flying overhead there is
no guarantee of privacy. Yes, rights must be balanced against
other rights in a free and democratic society.

Senator Kinsella: On page 48 of the 1999-2000 annual report
of the Privacy Commissioner, it is pointed out that the privacy
commissioner has no legislative mandate to educate the public
about their informational privacy rights.

(1640)

What is your view as to the importance of the Privacy
Commissioner in exercising a public educational role as Privacy
Commissioner?

Mr. Radwanski: I think it is of fundamental importance,
senator. In fact, the situation has changed because, under the
private sector legislation, Bill C-6, there is an explicit education
mandate. In fact, my first act literally as interim Privacy
Commissioner was to create a new branch of the operation. The
first week I was there, I brought in a new director general of
communications and created strategic research for the Office of
the Privacy Commissioner. We are working hard at present on
finalizing guidebooks regarding the private sector legislation,
both for industries that will be affected and for the general
public. We are planning advertising campaigns, information
campaigns, conferences — you name it.

More broadly, I think it is an absolutely fundamental role of
the Privacy Commissioner, particularly because this is an
ombudsman function. It is a function that relies on moral
authority in being able to bring abuses to light and, by the
response that that evokes, hopefully having those abuses
corrected. For that to be the case, there must be a public
constituency. The public needs to understand the importance of
privacy issues and their nature and their role. Communications is
absolutely fundamental to that.

The short and the long answer to your question is: Yes,
education is critical.

Senator Kinsella: Approximately what percentage of the
Privacy Commissioner's budget in the present fiscal year is for
public education in matters of privacy?

Mr. Radwanski: Until now, it has been a very small
proportion. As you know, the Privacy Commissioner's Office
was allotted substantial additional funds, in the order of more
than $5 million, for the first year of dealing with the private
sector legislation. We have not finalized our allocation of those
funds, and certainly a large increase in the investigative function
must be carried out, for research and so forth, but a very
substantial commitment will be made to public education
and information.

I should add that I want to do that in the most cost-effective
ways possible, and not all of those require spending huge sums of
money. For instance, I believe a crucial role of the Privacy
Commissioner is that education or information function which
can be addressed through public speaking, through availability to
the media and through involvement in conferences. Certainly,
were I to be confirmed in this position, I would anticipate
devoting a very considerable portion of my energies to that
education, communication and consultation function; but I would
also devote substantial resources to making sure that we heighten
public awareness.

Senator Kinsella: In your view, sir, how far behind do you
think government legislation, policy and regulations are in terms
of the current press of electronification of information today?

Mr. Radwanski: I would be hard pressed to try to quantify it.
I think that certainly the private sector legislation is an important
step forward. There are very important new issues arising
literally every day.

As the Privacy Commissioner, my challenge, were I to be in
that role, would be to ensure that we, first of all, do everything
necessary to have a good understanding of those issues as they
are emerging. That is why I am also considerably enhancing the
research and analysis function of our office. I certainly would
look forward to providing advice to this chamber, to honourable
senators and to the other House, to Parliament as a whole, on an
ongoing basis on what gaps and needs we identify. I certainly
would never be shy about so doing, because I think that is a
fundamental part of this role.

Senator Kennedy: Mr. Radwanski, I am interested in the
privacy aspect of our health records. Traditionally, I think our
health records have been quite properly guarded by the medical
people with whom we deal. They have often felt that those
records are indeed theirs, although they may be records that
pertain to you and your health.

As we go along in this information age, it is certainly not
beyond the realm of possibility that within the very near future
you and I will have medical cards that contain our medical
records, and I hope that that will be the case. Quite recently, in a
case that I know of, a person in hospital was given a medication
which he should not have been given, simply because they had
not gone back through his old records. The result was the
necessity for blood transfusions and so on.

What I am getting at is, when we can have that kind of
consolidated information that is about us, will we own that, or
will the institution or the medical profession own that? Whose
right of privacy will we be looking after in that instance?

Mr. Radwanski: You are touching on what I think is one of
the priority privacy questions of the period ahead. Like you, I
start from the premise that there certainly are advantages to some
of the advances that can be made in managing health
information, both from the point of view of individuals and with
respect to having a collective picture of the health of Canadians,
vis-à-vis emerging problems, and so forth. The critical issue, and
I think it has to be built into these systems from the beginning, is
the protection of privacy. How exactly you do that, I think,
requires some more work.

My office had a meeting just two weeks ago with some leading
experts in the health care field, including several leading
academics from the United States who are very active on this
whole issue of privacy and health data. We are working on
coming up with the best recommendations on how to address it.
Certainly, as a point of departure, my premise is that the crucial
issue is that the information serve individuals from the point of
view of their specific information and that aggregated data serve
the system for providing the best possible care. However,
safeguards must be built into the systems right from the
beginning to ensure that the information in fact remains private
in the truest sense and cannot be used for inappropriate purposes.
For instance, information that is available to one's health
practitioner should not automatically end up being available to
third parties, to employers, or whomever. That would be a gross
violation of privacy, let alone should it find its way into
commercial hands for uses that could be very intrusive
of privacy.

How you achieve that is something that, as I say, my office is
working very hard on, and I certainly would anticipate reaching
conclusions and perhaps having opportunities in this venue or
others for me to keep you and other senators apprised of our
thinking as it develops.

Senator Lynch-Staunton: Mr. Radwanski, when
Mr. Phillips' name was put forward by the government of the
day, there was strong opposition from our friends opposite, who
were then in opposition here and in the other place, on the basis
that he was tainted politically because he had held an office with
the Prime Minister and had been named to Washington as a
counsellor on information. That gave him a political tinge that
was unacceptable to an office which should certainly have the
appearance of independence.

In your c.v., which I have before me, you have been identified
on a number of occasions with the Liberal government and
Liberal party activities. I have no objection to that whatsoever,
and it is not the point of my remark. However, is the objection
raised at the time by our friends opposite still valid today?
Should anyone who has been identified as fairly active with a
government party, particularly, have his qualifications questioned
for this position, or for that of any officer of Parliament, of which
I think there are six others?

Mr. Radwanski: Well, senator, I was not among those who in
any way questioned my predecessor's appointment, and I would
not be among those who would ever argue that service to this
country in whatever form, as long as it is honourable service,
should be disqualification for continuing to make a contribution
to the life of this country.

(1650)

I certainly would not identify myself as a partisan in any
ongoing, active sense, nor has that formed the bulk of my
activities, not that I would apologize to you if it had. What I have
tried to do throughout my career is make a difference and uphold
the values that I believe in and, in some instances, fight for the
issues that I thought were important to fight for. In several
limited instances, that did mean becoming directly involved in
the political process.

Those were quite limited political instances. One particular
event where I did involve myself was the 1988 election
campaign. I assisted Mr. Turner at campaign headquarters. I was
invited to do that. Having been in journalism, it was the first time
I was in a position to make a contribution in that way. I had a
strong sense that there were important issues before the country
in that election. I had a strong view regarding some of those
issues and the direction in which the country was heading.
Frankly, I also had a concern going into that election that a very
important political party was in some danger of being wiped off
the face of the political map and I did what I could to be helpful.

My other major involvement was helping Mr. Chrétien during
his leadership campaign and providing some limited advice on an
ongoing basis from Toronto for a year after that when he was
opposition leader. That was based on my view that this was an
individual for whom I had very high regard. I had known him
since my days as a journalist. I believed that it would be
beneficial to the country to have him as leader of the Liberal
Party for a variety of reasons, not least of which was his views on
the national unity issue, and I did what I could to help.

As a partisan, I have not been involved in the last several
elections in any significant way. I knocked on doors for a few
friends and I make no apology for that either.

I would almost feel that I had to apologize to you or to this
chamber more if I were an individual who had not concerned
himself with public issues or had not tried to make a contribution
to this country over the years. If I had reached my current age
without ever trying to contribute to the political process or to
advance some of the causes in which I believed, then I think you
could legitimately ask me how I would purport to care enough
about anything to be taken seriously in this position. My short
answer is that in general I do not believe political involvement
should disqualify anyone from office. The question is, is the
individual qualified and is political involvement the only reason
for which a position is being tendered or provided? In my own
particular case, I do not think my involvement either qualifies me
or disqualifies me. I would rather be considered on the basis of
my own qualifications and contributions to the life of
this country.

Senator Lynch-Staunton: If we were able to hold up this
nomination or appointment to November 20, would you be
available until then to help another party which is trying to
save itself?

Mr. Radwanski: Well, senator, I would still be Interim
Privacy Commissioner so I would have to be as avowedly
non-partisan until then as I am determined to be throughout my
involvement.

Senator Lynch-Staunton: I am sure you will be and I have no
objection. I am glad you gave us an outline of the political
activity you were involved in, and I hope you will agree with me
that the objections that were raised against Mr. Phillips were as
unfair, invalid and uncalled for as they would be today if I raised
them. That is the point I wanted to make.

I do not apologize for using you to make that point but it has
been on my mind for some time. I have been reading the
transcripts here of what was said about Mr. Phillips. The fact that
the same people who objected to him extended his mandate twice
speaks very highly for the standards we set.

I have another question. You did not get all-party support in
the House of Commons. I have not read the transcripts of the
debates there, but I understand that some members questioned
your qualifications for this job. I do not know if you appeared
before the House of Commons committee because, again, I did
not have a chance to read the transcripts. You are here today. Can
you give us your qualifications directly?

You say you were asked to take the job. It is not an easy one,
particularly because many people do not believe privacy exists.
Computers can be tampered with. We all know the challenges to
privacy that exist. We know the weakness of the Privacy Act.
Mr. Phillips wanted to strengthen it and had little success. We
know the efforts of Senator Finestone, which you mentioned
earlier, to put some teeth into the privacy statute. So far she has
met with little success.

How do you qualify to reassure Canadians that, in the next few
years, the issue of privacy will not only be looked after but that it
will be even better protected? Hopefully, at your next
appearance, we can continue this discussion.

Mr. Radwanski: To answer the first question, I did appear
before a committee of the House of Commons for about an hour
or 90 minutes and answered all their questions. Second, to my
knowledge — and I stand to be corrected — no member of the
other chamber questioned my qualifications for the position.
Remarks were made about my so-called political affiliation.
I have given you my comments today as indeed I made
comments before the Commons committee. I provided them with
the same information.

At the end of the day, it is for this chamber and for Parliament
to determine whether or not I am in fact qualified. If you want
my own view of my qualifications, let me begin by saying that I
would not have accepted this position even on an interim basis,
let alone be putting myself before you for a full-time
appointment, if I did not feel fully qualified.

Why do I feel qualified? First, I have a degree in law, which is
frankly more than the predecessors who performed very
elegantly in this position have had. Second, I have had an
extensive career in dealing with important public policy issues
whether as a journalist, a consultant or an author. My whole
public career, my whole life as an adult, has been devoted to
seeking to understand, to analyze, to reach conclusions about and
to comment on or provide advice on, if you will, important
policy issues. Of course that is the crux of the work confronting
a privacy commissioner.

I have senior management experience. I have headed three
major policy-and-issue studies, as I mentioned, two for the
Ontario government and the third being the Canada Post mandate
review. I am skilled — if I may say so, an expert — at
communicating. I am good at getting a message across to
the public.

If one looks at all the required components of this job,
I believe I meet them certainly as well as any of my
predecessors. Whether I meet them to your satisfaction, only you
can determine.

Senator Fairbairn: Thank you and welcome,
Mr. Radwanski. I have a comment before my question. I would
support your nomination as Privacy Commissioner based on the
qualifications and the experience you have for exactly the same
reasons that I supported the nomination of your predecessor,
Mr. Phillips, with the qualifications that he had.

I want to just tag a question onto that asked by Senator
Kennedy on the issue of health. As you may or may not know,
the Senate is engaged at the moment in a special study on health
care in Canada through our Social Affairs Committee. That study
will be ongoing through the next year or so. Already the question
of privacy of health information has come up. Indeed, you may
very well become a witness before that committee.

Added to the health issue, though, is another issue with
which I think we are only just coming to grips: the question of
genetic information.

(1700)

Mr. Radwanski: I am sorry, senator, I had some trouble
hearing you with some of the cross-talk here.

Senator Fairbairn: I will repeat the last sentence. In addition
to interest and concern about privacy of health information for
individuals in our new scientific and technological society, the
other issue coming to the fore is the question of genetic
information. I believe there have been efforts in the United States
to form regulations in this area. I am not aware how far we have
gone in our studies.

Do you have particular views on the degree to which privacy
should extend to the issue of genetic testing as it affects the
individual?

Mr. Radwanski: This is a huge issue, senator. It is of great
concern to me and something that I was fascinated with and
concerned about even before this position loomed on the horizon
for me. It raises some crucial questions about privacy and the
rights of the individual.

As science advances, there can be great benefits from genetic
testing in terms of being able to head off certain diseases,
prolong life and so forth. How that information is handled is of
enormous importance. One of the questions is whether insurers
have the right to information not only about one's current health
but about one's potential health, which is, in effect, what genetic
information provides. If they do, where would that leave the
individual and the right to keep information about his or her
health private? Complex arguments could be made on that issue.

There are also employment issues. If I could find out that an
employee is predisposed to a condition that has not yet occurred
but that could leave the employee disabled or unreliable in terms
of attendance, would I have the right to discriminate against that
employee on that basis?

This is where it gets very interesting. There are questions not
only about the right to protect one's genetic data but questions by
some experts about the right not to know. If my DNA is sampled
in the course of a medical procedure, do I have a right not to
know that I am prone to some life-limiting condition? What
about a third party? If a genetic-based ailment runs through my
family, in the instance of a parent or sibling, do I have a right not
to know, or does a medical practitioner or a third party have an
obligation to inform me?

These are huge questions. I would not pretend that I or my
office have the answers, but they are priority areas for
examination. We are examining and researching them. My
overall disposition on this, as on other matters, is that the privacy
of the individual must be protected. For instance, confidentiality
is critical in individuals feeling free to go to their physicians. If
one had to fear that one's medical information could be spewed
all over the place, one might not go to a practitioner if it were
important to do so. Advantages to DNA testing and future
genetic manipulation may be lost to individuals if they are afraid
to obtain the information for fear of having their privacy, and
possibly the future course of their life, their employability,
insurability and so forth, violated.

These are complex issues, honourable senators. It is not
enough to say we will just keep it all secret because who knows
what that means? We are looking at these issues very carefully.
Again, at the right time, I would welcome the opportunity to
appear before a Senate committee and give, certainly not
definitive answers — I doubt that anyone will have them — but
the best advice of myself and my office.

Senator Fairbairn: We shall put your name on the list.

Senator Lynch-Staunton: I have a point of clarification, if
Senator Fairbairn will allow me. On April 17, 1991, the vote for
Mr. Phillips was 38 and against Mr. Phillips was 30. Senator
Fairbairn is shown as voting against Mr. Phillips' nomination.

Senator Fairbairn: That would be inaccurate.

Senator Lynch-Staunton: Then the debates are inaccurate, so
we will have to have a correction nine years later.

Senator Carney: Mr. Radwanski, I am not questioning your
journalistic experiences or your policy background, but I would
be interested in knowing how computer literate you are. Do you
personally use the Internet?

Mr. Radwanski: I do, senator.

Senator Carney: Would you or do you use the Internet to
order goods and services from retailers using your charge card?

Mr. Radwanski: I do not, senator.

Senator Carney: Why not?

Mr. Radwanski: I do not for several reasons, the most
prominent being that I have not found it a particularly useful way
to conduct transactions. I have used the Internet to book hotel
reservations, for example, and I have used my charge card in
those instances. If you are asking whether I am conscious of
hazards in that regard, yes, I am.

Senator Carney: Privacy matters in the use of the Internet and
information technology can be of practical concern to you,
Mr. Radwanski. It is one thing to say that your office is studying
it, but I want to know how technically skilled you are in
assessing the problem of privacy on the Internet. Then I will have
another question.

Mr. Radwanski: I do not know if I am technically skilled.
I think I am sufficiently intellectually skilled. You might ask as
well if I have a medical degree. No, I do not, nor do I have a
degree with regard to genetics or a host of other issues that will
arise. I certainly have sufficient knowledge to understand the
nature of the issues and sufficient sense to employ people who
have expert knowledge and expert understanding and who can
explain them to me in ways that I will be able to understand.

Senator, you will appreciate that, as part of my journalistic
training, if someone can explain something to me in a way that
I can understand and I can then explain it in a simple enough way
that another person who does not have knowledge of these issues
can understand, I have made a contribution. I am not concerned
about my ability to cope with the issues, if that is the question
you are asking.

Senator Carney: When I attend conferences on these issues,
I am told that there is a question of whether regulations,
legislation or policies in this area are useful because technology
and consumer response are changing so quickly that any time
regulations or legislation are brought in, they are obsolete before
they are even mandated. There is some argument for that. In
addition, since so many of these technologies are
international — and you would appreciate this as a
lawyer — there are clear restrictions on a country's ability to act
on these matters. I would be interested in your views.

You have mentioned that your office would be vigilant, but do
you think there is any practical way to bring in legislation and
regulations in a technological era that is changing so quickly?
Consumers are reacting to these changes in an international
system. Is your office in fact obsolete or ineffective in this area?

Mr. Radwanski: I would argue the contrary, senator. Precisely
because regulation and legislation have their limitations in an
area that is so quick-moving, an office like mine that operates not
by regulation, not by legislation, but by public disclosure and by
moral suasion and by information has an all the more critical role
to play.

(1710)

My office and the incumbent in my position are charged with
upholding certain basic privacy principles with regard to the
collection of information, the correlation of information, the
storage of information and the dissemination of information.
Those principles remain valid for the protection of privacy.
Whatever the technology or whatever the innovation, they have
to be applied on an ongoing basis. That is precisely what an
office like mine is able to do, namely, look at a given situation
and say that as a result of this technological invasion, a principle
of good privacy protection is being violated. It does not take all
the time of the legislative process to deal with that. We have the
authority to report to this house or to make public disclosure any
time an abuse of privacy comes to light that the public should
know about. I would argue the opposite of your hypothesis. I
would argue that, far from being obsolete, this office is essential.

Senator Carney: I changed the word to "ineffective."

Mr. Radwanski: I hope not. We have not had the mandate in
the private sector until now, so I cannot tell you whether or not
we are effective. I certainly hope — that is, if I am confirmed in
this position — that when I report to you and this house a year
from now, I will be able to give you some evidence that we are
beginning to be effective. I see no inherent reason why this
approach should not be effective.

Senator Carney: For the purpose of the debate, could you
give us your definition of "privacy"? You must have an operating
definition that would be useful to put on the record during this
discussion.

Mr. Radwanski: To be truthful, I have not sat around trying to
formulate the exact wording, but I will try to give you a working
definition at this time. No one has asked me that question
directly. I have a sense of what privacy is, but I have not tried to
put it into words.

Senator Kinsella: The right to be left alone!

Mr. Radwanski: Certainly, that is a fair definition. I do not
know if it is a complete definition, though. I am making this up
as I go along, so I would not want to be held to it for years to
come. Nevertheless, it will give you a sense of intellectual
direction, perhaps.

I would say that privacy is the right to have information that
pertains to oneself remain within one's own control, except and
unless there is a demonstrable justification for doing otherwise;
in most instances, except and unless one gives consent to other
uses or other availability of that information.

Senator Carney: Are you telling us that there is no definition
of "privacy" in your terms of reference?

Mr. Radwanski: I do not believe that the word "privacy" has
ever been legally defined, but I stand to be corrected. There are
many definitions, but most of them are either philosophical or
theoretical. There are also dictionary definitions. You can shoot a
hole in the definition I just gave you, but someone else could
raise another definition and I could probably shoot five holes in
it, too. It is a notional concept. It means different things to
different people.

Senator Carney: It is not notional to me if the argument is
that technology and practices are changing so quickly that
regulation and legislation are not effective. If your answer to that
question is that your office gives you the mandate to be free of
regulation and free of legislation and to operate on the basis of
certain principles, then I would argue that having a definition of
"privacy" is vital. Otherwise, your office is unconstrained in its
potential action and your own views as Privacy Commissioner
are very important. You might wish to address that issue.

Mr. Radwanski: I certainly will take that under advisement,
senator. Thank you.

[Translation]

Senator Beaudoin: In your presentation, you stated that the
right to privacy is fundamental and I totally agree with you
on that.

I realize that "the protection of privacy" per se is not in the
Charter of Rights. However, section 7 of the Charter speaks of
freedom and security of the person. I am also aware that there are
no absolute rights. They may be limited if it can be proven that
this is reasonable within a free and democratic society.

The debate we have this afternoon is basically about that.
What is reasonable within a free and democratic society such as
ours? How far can historians, journalists, writers in general, and
the public servants go? Do you consider it really a fundamental
right? I believe so, but I would like to hear what you have to say
on this.

Mr. Radwanski: I would say so as well.

[English]

I am trying to show off that I have not forgotten all my French,
but I will accept your invitation in that regard.

I do think it is a fundamental right on par with other rights
enumerated in the Constitution, subject to the usual qualification
of such limitations as are reasonable in a free and democratic
society. Yes, I do think it is a fundamental right. I think it touches
on the freedom of individuals right across the span of their lives.
For instance, if you hesitate to go to a physician when you are
concerned about some symptoms because you are worried about
the way that information might be used, then you are not as free
as you should be. If you are concerned about making a given
purchase because some form of data matching could conceivably
reach a wrong conclusion and attribute to you flaws or
characteristics that you do not have, again, you are not as free as
you should be. You can get into potentially Orwellian situations.

I have heard examples concerning data matching and identity
cards that are absolutely frightening. I will give you a
hypothetical example. Let us say that you have an elderly shut-in
relative who likes to have a certain amount to drink and that you,
as a good deed, begin stopping every day at the liquor store to
pick up a bottle of her favourite libation. With certain data
matching and the way some of that stuff can and in some cases is
being accessed, a potential employer or someone doing a
character check could end up concluding that you have a serious
drinking problem. Without you ever knowing about it, your
future could be circumscribed. Before making a simple
transaction, if you have to stop and think about whether the
information could somehow be misconstrued or used against
you, again you are not free. I could give 50 examples of the ways
in which not simply convenience but also fundamental freedom
to live our lives unconstrained except by the dictates of a
civilized society is compromised and privacy is violated.
My answer to your question is: Yes, I do regard it as a
fundamental human right.

Senator Beaudoin: There is also the question of the purpose.

[Translation]

If medical or other information is provided, this is done for a
specific purpose. Is this not where it needs to be stated that such
information is provided for a specific purpose and that it cannot
be disclosed for any and all purposes?

(1720)

Senator De Bané's question is more difficult. Historians who
write the biography of famous people, outstanding individuals
well beyond the average, have access to the archives. In political
terms, I do not think that represents much of a problem. We will
always write about the lives of famous people. However, how far
can we go into their personal lives if there is no connection
between their personal remarks and their public lives in the
service of their country? Is this not the very test of
non-disclosure of information?

[English]

Mr. Radwanski: Again, senator, I agree with everything you
are saying, so we cannot have much of a debate. It is the difficult
issues that are always the test of privacy, and there is a balancing
act in every instance. It is a matter of what is information
relevant to an historical understanding and what is information of
a private nature and should remain private.

For the most part, I would draw an analogy to day-to-day
media reporting. I do not want to get drawn too far into this
subject or we will get into a discussion that would not serve me
well and would have me defending some media that I would not
always want to defend.

We have done a pretty good job in this country — certainly the
media has — of separating what is private and what is public.
For instance, in this country, unlike some others, we do not have
a steady diet of reading about the extramarital affairs of political
figures because that is not the Canadian way. Our Canadian
values militate against that kind of invasion of privacy. Broadly
speaking, that has been the case with historical research as well.
Can difficult instances arise? Certainly.

Again, there is a distinction perhaps between archival
information, which is the information that public figures provide
to the archives about their tenure and so forth, and private
information, which is their credit card receipts and so on, which
do not normally go into the archives. Yes, there is always a
balance to be drawn between what is in the private interest and
what is in the public interest, and you are putting your finger on
one of the issues in which that is always a difficult choice.

[Translation]

Senator Prud'homme: My first words will be to sincerely
thank Mr. Bruce Phillips for his remarkable work.

[English]

I supported him. I know that our colleague Senator
Lynch-Staunton keeps good records, so Senator Lynch-Staunton
can attest to that. If you look at the records you will find that
I always supported Mr. Phillips. My correspondence with
Bruce Phillips is a good testament to that fact. I found him to be
highly competent, and I feel that it would be unfair for me to
begin my questioning without saying that he has been a fair
person, as I believe a privacy commissioner should be.

That being said, I am not concerned at all that Mr. George
Radwanski, who is the government nomination, may have a
Liberal past. I feel that this should not enter into our
deliberations. If we are to exclude all those who devote some of
their time to defending democracy, we may lose a great talent.
His political background does interest me, but it does not trouble
me at all.

I have only one question for the moment, but I will reflect on
what Mr. Radwanski has said today. During the full debate, I will
emphasize the fact that the position of Privacy Commissioner is a
sensitive one. I wish to be assured that the person who becomes
the next Privacy Commissioner will be fair to all Canadians. That
is essential. That is what I must agonize over before I make my
decision. When I say "all Canadians" I include every Canadian.

[Translation]

I include French Canadian and Quebec nationalists, the
members of the Parti Québécois or those of the Bloc Québécois.
I know your views are very clear on the subject.

[English]

As a matter of fact, your views on this subject are well known
to some of my peers who attended McGill with you. I was
surprised. I am interested in your views, then, and I believe you
have retained them throughout your life. You have a very strong
view about nationalist French Canadians. That is your right, but
my objection is that you will be our next Privacy Commissioner.

There is another concern of which I am sure you are well
aware. I thank you for phoning me last week. The reason I did
not return the call is because I did not want to have a pre-emptive
strike. I wanted to come here and have a discussion with you
without our having had a discussion before today. I was taught by
my father to be courteous and that if someone phones me
I should return the call. However, I purposely did not return
the call.

Mr. Radwanski has written extensively, but there is one article
that is of great concern to me because I was directly referred to
by him when he was editor-in-chief of The Toronto Star. There is
no doubt that I was torn to pieces in that article, and that was his
right, except I paid the price because I had to be protected. That
was in 1983, when I showed up in Algeria for the National
Palestine Council for the first time ever. Strangely, I was with a
Conservative Party member, but the name of that Conservative
was never mentioned — only mine.

Tomorrow I will read Mr. Radwanski's editorial for the record
because he once told me he wrote it personally. I thought it was
one of his juniors. However, he did great damage to me in 1983.
Mr. Radwanski held very strong views then.

Coincidentally, I discussed that matter with Mr. Trudeau, who
I think Mr. Radwanski knew very well. Since 1970, Mr. Trudeau
always encouraged me in my views concerning the creation of a
State of Palestine. As you know, we have more and more of these
people in Canada.

As Privacy Commissioner, I want to be assured that
Mr. Radwanski will be fair to all Canadians despite any strong
views he may possess. I cannot deny a man of his competence
and talent, and I do bow to that. I read almost everything
available to come to these conclusions today. Mr. Radwanski is a
man of great talent and competence. I do not deny that. The only
difficulty I have, and I must say that it is a great difficulty, is the
question of fairness to all Canadians regardless of their views on
world affairs — views that he combatted vigorously when he was
editor-in-chief of The Toronto Star.

I need to listen to all that Mr. Radwanski has to say today in
order to find that out. Thus far I am not shocked by what has
been said or exchanged because I know how things work. I am
sure that by the end of this week you will no longer be the
Interim Privacy Commissioner; most likely, unless something
unbelievable happens, you will be the Privacy Commissioner.

(1730)

If you are to be the commissioner, I want to have the
confidence that I can trust you — but who cares about me? It is
not I that I am concerned about. I am an old man now.
I succeeded and I survived. However, I am concerned that the
millions of other people who may not share your views on
certain issues have confidence that when they go to see the
Privacy Commissioner they can feel that they are in the right
place and in the right hands.

Mr. Radwanski: You raise several points, senator, and I will
try to address some of them. First, just for the record and lest it
be misconstrued, I did telephone you. The reason was that I was
told you had some concerns which I was given to understand you
might welcome an opportunity to chat about. Thus I gave you
that opportunity.

Broadly speaking, you raised my views on Quebec.
You mentioned nationalism. I have views on nationalism, on
federalism and on most anything you want to mention. The short
answer to what you are implying is that I am a Canadian. I am a
federalist, and I make no apology for that to anyone.

Senator Prud'homme: Same here.

Mr. Radwanski: That being said, I would not let my views on
that issue or any other impinge on doing a given job that I am
mandated to do. If people come before the Privacy
Commissioner with regard to an issue in which their privacy has
been violated, their ethnic origin, their religion, their race and
their political beliefs do not matter. The only issue that is before
the Privacy Commissioner is whether or not their privacy has
been respected as it deserves to be under the laws of Canada.

I can tell you in all humility, senator, that no one to my
knowledge in 30-odd years of career on one issue or another has
accused me of being unfair or discriminatory to them on any
matter. I pride myself on my integrity and my fairness. If that is
the assurance you are looking for, senator, you have it.

With regard to the editorial to which you refer, I am afraid
I will have to beg your forgiveness, because I simply do not
remember it.

Senator Prud'homme: I can give you a copy.

Mr. Radwanski: I will be glad to review it, just to satisfy my
own curiosity.

That being said, on general principle, I will stand by whatever
I said at the time and tell you that, in any event, based on the
information that was available to me at the time, and on my best
judgment and my discussions with the editorial board of the
paper and other people, whatever I said was what I believed to be
right at the time. I can only tell you that whatever I said I said in
full integrity with the discharge of my duties at that time. That is
all I can undertake with regard to my current functions — I will
carry them out honourably and honestly. Will I be right all the
time? Not necessarily. Will I be fair? You have my word on it.

Senator Prud'homme: I just want to make a concluding
remark.

[Translation]

The Chairman: We are now into the second round
of questioning.

[English]

Senator Prud'homme: Keep the clock for everyone, then.

Senator Comeau: I would like to come back to Senator
Milne's question regarding the 1908 census. You mentioned the
fact that you supported the compromise as proposed by your
predecessor. I noted that Senator Milne seemed quite happy with
that compromise. I am not familiar with the compromise. Would
you please explain it to us? It has to do with Bill S-15.

Mr. Radwanski: Without getting unduly technical, because it
is a fairly complicated structure, the essential nature of the
compromise is that the census data would be made available to
qualified genealogists, or bona fide historians, for purposes that
have been peer reviewed as being legitimate research. It would
be made available in ways that involve basically requiring them
to maintain the confidentiality of the information beyond the
specific task for which they have been permitted to access it. It is
more complex than that. However, in broad outlines, it is
permitting the release only for very specific and constrained
purposes to individuals who also in effect have to be sworn
to secrecy.

Senator Comeau: Senator Murray raises a good question:
Will the proposed legislation be amended to reflect that? I would
like you to answer that question.

In the process, my understanding was that back in 1908 these
individuals were promised by the government of the day that this
information would not be divulged to anyone in any way, shape
or form. It was a promise. That is my understanding. You might
wish to correct me if I am wrong, but my understanding is that it
was a promise by the government that this information would be
kept confidential. Now, 92 years later, we are saying "Oh, well,
they are dead now, we can do whatever we want." If we can now
break a 92-year old promise as a government or as
parliamentarians, will it soon be 5 years or 10 years? Breaking a
promise is breaking a promise. I think it should stand the test of
time. I think you are suggesting that we will now live with it
because it was so long ago and that the information will be
handed only to a few individuals of high integrity. I do not buy
that at all.

Mr. Radwanski: Senator, you raise a very good point. I think
I said at the outset of my response to Senator Milne on that
question that for me the fundamental issue is: Is the government
keeping its word? I think that is fundamental.

That being said, we live in an imperfect world in which there
are competing interests. My predecessor, having examined this
issue, was originally dead set along the same lines as you and
I are saying. However, he came to regard a compromise position
as being far from optimal, which he made clear all the way
through. However, as the word implies, it was a reasonable
compromise. Certainly, given the possibility that, absent a
compromise, the original position of simply releasing the stuff
outright might have prevailed, a compromise in this instance
might be better than risking the alternative. Am I in love with
that solution? I am not — and I repeat — predominantly
because of the issue of the government's having given its word.

All that being said, if it is circumscribed in the way it is
described only for limited purposes and only to very limited
individuals sworn to secrecy outside those narrow purposes, it is
certainly better than a wide-scale release. Compared with the
original contemplation, I would say it is a qualified victory for
the principle of privacy. However, it is a compromise. I do not
know what more I can tell you.

Senator Comeau: It is like being one-quarter pregnant. Either
you keep the government's promise or you break it. In this case,
we are breaking it.

Senator Milne: The government did not make a promise.

(1740)

Senator Comeau: We will get into a debate on that later.

If my government were to come to me and say that it wanted
to know something private about me which would be used along
with other information but would be kept confidential, I would
like to be able to provide that information in order to assist in
whatever study was being done. However, if I suspected that the
government would start down the slippery slope of making that
information public for various reasons, I would not divulge that
information. I would like to be able to give requested information
with the confidence that my government would keep it private.

Mr. Radwanski: Senator, I said from the outset that I agree
with your view on the principle. The whole situation is
imperfect. There was a real possibility that a different course
might have been taken — that is, releasing it outright in response
to a very strong lobby from historians, genealogists, and so forth.

Senator Murray: The compromise will require legislation,
will it not?

Mr. Radwanski: I agree with you in principle. Sometimes one
must put a little water in one's wine. I would certainly take the
view that a commitment made by the government should be kept
in all circumstances.

Senator Comeau: I will stick to my point. If you are prepared
to compromise your principles on that, so be it, but I would not
support any legislation that would do such a thing.

Mr. Radwanski: I do not want to be drawn into a prolonged
debate on this matter, senator, but I would not characterize it as
compromising my principles. We could debate whether that is a
fair way to put it, but I will simply put on the record that I do not
compromise my principles. I do believe that sometimes one must
look at how privacy can be most efficaciously protected given all
the realities of a situation and that a privacy commissioner who
detaches himself from the reality of what is going on around him
would not be doing a service to the cause of privacy.

Senator Comeau: I was harsh in suggesting that you are
compromising your principles. I withdraw that.

Mr. Radwanski: Thank you, senator.

Senator Tkachuk: Congratulations on your appointment as
Interim Privacy Commissioner. I want to follow up on what
Senator Carney was asking earlier about your views on privacy.
With the concentration of power in the executive branch of
government, about which the media, political people, political
scientists and legal scholars are now talking, and with the
lessening of the role of Parliament, do you think the Privacy Act
should be extended to oversee the power of the PMO and the
executive branch?

Mr. Radwanski: That is an interesting question. I would have
to review the question further and let you know, but without
studying it I would have thought that, because the federal
government is covered by the Privacy Act, it would be subject to
it. I would have thought that all parts of the Government of
Canada are subject to the Privacy Act, including the Prime
Minister's Office. I do not believe they could violate the privacy
of individuals with impunity. Therefore, I think the answer to
your question is that it should be covered, and I believe it is.

Senator Tkachuk: Including cabinet secrecy?

Mr. Radwanski: No. Cabinet secrecy is cabinet secrecy, but
that is not the same as the PMO. I do not know where you are
going with that particular inquiry.

Senator Tkachuk: It does not matter where I am going. I am
just asking the question.

Mr. Radwanski: Do I think that the Privacy Act can override
cabinet secrecy? I would need legal opinion on that, because
I suspect that cabinet secrecy is a constitutional convention that
no regular law can override. If you want a legal opinion on that,
I can certainly have my office look into it further and provide
you with it.

Senator Tkachuk: I believe that what a person thinks about
privacy is important and, considering the way the act is set, it
does not necessarily include individual Canadians. Therefore,
I want to get into a bit of a philosophical discussion on how
much privacy a person has. I was a little confused by your
answer to Senator Carney when she asked for a definition, and
I want to follow up on that a little bit.

What privacy does a person have in his own home?

Mr. Radwanski: Full privacy, I suppose, subject to intrusion
by warrant or in the case of emergencies. If your house is on fire,
I suppose the fire department can violate your privacy by
breaking in to ensure you do not burn to death. Privacy is always
balanced, but, normally speaking, absent a compelling social
reason, you are entitled to full privacy.

Senator Tkachuk: Do newspapers have the right to
photograph people in their own homes and publish the picture in
the paper?

Mr. Radwanski: I would say not. I would say they have that
right in public, other than in Quebec where there is legislation
prohibiting publication of pictures of people taken in public
without their consent, but certainly not in their own home. I
would say it is not illegal, but it would certainly be actionable.

Senator Tkachuk: Including public people, like the premier
of British Columbia?

Mr. Radwanski: I would say it is not a violation of law, but it
could be actionable on grounds of harassment or various other
things. I am not here to give you a legal opinion on that, but
I would think it could be actionable by the individual who is
thus treated.

Senator Tkachuk: There has been much action by
governments to photograph people as they are driving and on the
streets. Is it an intrusion of privacy when people are
photographed in public places without their knowledge for no
reason whatsoever?

When you walk into a convenience store there is a sign
alerting you that there is a surveillance camera, but do you agree
with the use of surveillance cameras without informing people?

Mr. Radwanski: That is a very interesting question. I have
read recently that someone calculated that the average person is
photographed perhaps 200 times a day — I could be wrong
about the figure but it was of a strikingly huge order — in the
course of going about his or her business. Is that kind of violation
of privacy a potential concern? Yes, it certainly is, but again it
depends on how it is used and what is done with it.

For instance, if you are filmed on a store security camera on a
continuous loop that is automatically taped over every five or six
hours, as some of those cameras do, it may be unpleasant but I
doubt that your privacy is being violated in a particularly serious,
meaningful way. If you were filmed by government cameras for
purposes of traffic control, photo radar, or whatever, and the
pictures were kept and cross-referenced to your identity and
data-matched in some way, that would be a gross violation
of privacy.

There is a whole continuum of issues around surveillance. As
I said in my opening remarks, the protection of privacy is
becoming, if anything, more important, more sensitive, and more
difficult as we go on. In the past, it was protected in some ways
largely by default because the number of means of violating it
were relatively limited. The first new developments I mentioned
were new means of surveillance. I went on to speak also about
the new digital technologies, sciences, genetics and so forth that
are more and more threats to privacy.

(1750)

Certainly, the whole issue of surveillance is very important.
One cannot make a blanket statement that there should be no
surveillance cameras anywhere, because they do serve some
important purposes, but the issue is how the information is used,
how it is stored, if in fact it is stored, and what extraneous
purposes it could be put to. These are all very important
questions from a privacy point of view.

Senator Watt: I would like to put two questions. One is
supplementary to that of Senator Tkachuk in regard to violating
individual privacy. I am going to try to connect this to a piece of
legislation that already exists today so that you can understand
exactly what I am driving at.

You answered Senator Tkachuk by stating the fact that the law
enforcement officer would have to have a warrant to be able to
enter into a household or violate individual privacy or group
rights. Do we not already have a piece of law, Bill C-68, that
already authorizes law enforcement officers to go in without
holding a warrant? How do you deal with that?

Mr. Radwanski: To be honest with you, I am not familiar
with the piece of legislation to which you refer, senator. What is
it in relation to?

Senator Watt: Gun control.

Mr. Radwanski: I am not familiar with the legislation in
question. I am familiar with the gun control legislation, but I
have not looked at that particular provision. My office has been
doing an extensive review of the administration of gun
registration and so forth, and the work has not been fully
completed.

With regard to the instance you are describing, my general
view on these matters, very broadly stated, is that the authorities
should not intrude on individuals, whether by entering their
premises or through various forms of surveillance, whether it be
electronic eavesdropping, mail interception or any of those other
methods, without authorization from a court, with the notable
exceptions, obviously, of crimes in progress and protecting
public safety in a very urgent situation.

Generally speaking, warrantless intrusion is something that
should be discouraged to the maximum. I do not want to argue
that there are not special instances where a case could be made
for a greater public good that requires it, but as a general
principle I am against warrantless intrusion, subject to there
being a demonstration that there are circumstances that justify it.

Senator Watt: My other question might be a little
complicated in terms of answering and capturing what it really
all means when it comes down to individual privacy
requirements. How do you deal with differences on cultural
issues? For instance, there may be a certain sensitivity related to
cultural matters that are only important to a particular group, but
that does not necessarily mean that that aspect has to be shared
with anyone else. How do you deal with that?

Mr. Radwanski: As you said, it is quite a general question,
senator. I suppose I could only honestly answer it by saying that
you have to deal with it on a case-by-case basis, depending on
the nature of the issue at a given time. I think the principles of
privacy are fairly constant. Can there be issues of particular
sensitivity to particular groups? Of course there can. Can there be
instances of particular sensitivity to an individual which might
not exist otherwise? A particular type of intrusion, which might
otherwise be routine, might be extraordinarily harmful for a
particular individual. It is legitimate, even in that case, to say,
"Well, given that, privacy needs to be respected even more
than usual."

I think the answer is in how you deal with it: on a case-by-case
basis and with as much sensitivity as possible.

Senator Watt: Does that apply to a group of people such as
I am describing, let us say the Inuit or the Indians or the Métis?
This subject matter, the way you respond, could flow back and
forth between the Supreme Court of Canada and the Parliament.
It is something that needs to be worked on and developed.

Mr. Radwanski: To be able to go further, you would have to
give me a specific example.

Senator Watt: There are so many that I cannot begin to start
identifying one now.

Mr. Radwanski: I hear you.

Senator Watt: Time would not allow me to do that.

Mr. Radwanski: I hear you. I have to stand by my answer,
though, that one can only address these issues one at a time.
Certainly the Privacy Commissioner is mandated to address these
issues on a case-by-case basis. You really have to look at the
givens and the circumstances of a particular case, determine what
privacy right is being claimed, to what extent action is taking
place that appears to violate that right, and then whether in fact
there is a violation and/or whether a course of action can be
identified and recommended that would either remove the
problem or strike the best possible balance between whatever
legitimate social purpose is at play and the rights of the
individual. There is no sweeping declaration that I could give
you, I am afraid, that would cover all those contingencies.

Senator Watt: I am very happy with your response.

Senator Forrestall: I do not want to ask about what you will
do, because I know of your integrity and the work you have
undertaken in this country over many years.

I want to ask you how you will go about what must be the
day-to-day plodding along. Recently, we have very obviously
seen a new policy adopted by the present government using the
principle of lowest cost as opposed to the principle, which I had
always enjoyed and thought fairly useful, of best value for the
dollar invested. I want to ask you whether or not you have a view
with respect to your own office, as you embark upon new
adventures and a very difficult path, laneway and roadway. How
do you remain consistent? Indeed, can you tell us that you will be
consistent? Could you identify whether your general attitude
would be to give the best value for the tax dollar being extended
to you, or would you opt for this new government policy of
lowest cost?

Mr. Radwanski: Senator, I am not familiar with the new
policy to which you refer. All I can tell you is that my
commitment is, and would be, to doing the job that needs to be
done. If we do not have sufficient resources to do it properly, and
I think at the moment we have been given additional resources so
we should be able to do it well, but if we do not have sufficient
resources, we would come back to you and to the House of
Commons. I would come back and say, "Hey, to do the job we
have to do, we need more resources."

If your question is whether I intend in any way to compromise
on my responsibility to carry out the duties of this office, the
answer is no. Obviously, one has to do it in a cost-conscious
fashion and not in an extravagant or wasteful way. Certainly, the
office of the Privacy Commissioner, prior to my coming, has a
long history of being able to do with very scarce resources, so
frugality is well ingrained. I certainly intend to do the job that
needs to be done, and it is not my disposition to compromise on
quality. It never has been.

The Chairman: Honourable senators, I must advise you that it
is six o'clock. Is it your pleasure that I do not see the clock and
that we continue? I still have two more senators on the first
round, and others may want to speak. Do you agree that I not see
the clock?

Hon. Senators: Agreed.

[Translation]

(1800)

Senator Prud'homme: Madam Chairman, could we have an
indication of the number of senators who wish to speak? In
return, we could reply yes or no to your question.

Personally, I am prepared to not continue the discussion. I am
also prepared to pass my turn the second time around, but before
deciding I would like to know how many senators want to ask
questions the second time around.

The Chairman: Honourable senators, how many of you
would like to have an opportunity to ask questions the second
time around? I see that Senator Kinsella wishes to be heard. For
the time being, I am giving the floor to Senator St. Germain.

[English]

Senator St. Germain: Thank you, Mr. Radwanski, for
appearing before us. I guess it is a command performance.

Mr. Radwanski: It is a pleasure to be here.

Senator St. Germain: It is nice that we have the opportunity
to scrutinize these types of positions, and hopefully Parliament
will go through a reform process so that we can scrutinize a lot
more of these important positions. You described yourself as
educated, a lawyer.

Mr. Radwanski: I have a law degree. I have never
practised law.

Senator St. Germain: You described yourself as thoughtful
and intellectual, and that you have a certain amount of
technological expertise that will hold you well in this position.

In light of what I see happening with technology in this
country, I should like your views as to whether your position will
become redundant. When I look at Bill C-68, for instance, as
Senator Watt points out, the RCMP can enter and search any
residence if they believe something is wrong. When someone
applies for a firearm possession permit, the government literally
inquires into your marriage, your common-law relationships, and
anything and everything that relates to the privacy of Canadians.

Mr. Radwanski, you are sitting here today and have taken on
this job. The issue of firearm permits is big in the country right
now with our aboriginal peoples because it goes to the very
foundation of the tools that they use for maintaining a livelihood;
yet nobody says anything. All you intellectuals and all you bright
people are from the epicentre of the world, as Torontonians and
Montrealers describe themselves; the rest of us are just a bunch
of bumpkins living out in the hinterland.

I ask you to look at the questions that are on those application
forms. I filled one out. My wife, who has, bless her soul,
maintained the high road in life by not getting involved in the
political arena, was shocked. She could not believe that she had
to sign this document. You talk about an infringement of privacy
and yet you say, sir, that, at this stage of accepting this job, you
are not aware of it.

In addition, this information can be tied into so many other
things. As a former police officer in this country, I know what
information does. Information is the lifeblood of investigations.
Believe me, anything and everything that is held is maintained in
police records, and the police will use anything — and often
they have to — to solve crimes. Do you not think that your job is
redundant because what is happening is that there is really no
privacy in this country?

Mr. Radwanski: Senator, I must say parenthetically that you
put so many words in my mouth that I did not say that I would
take up far too much time in this chamber if I tried to clarify each
one of them.

In one area pertinent to your question, I certainly did not say
I was unaware of the firearms legislation — gun control
legislation. I said I was not familiar in detail with the particular
provision to which that senator had referred.

On the broad question of whether privacy is dead in this
country, my response is: not by a long shot, senator. As I said, my
distinguished predecessor very recently was successful in
bringing about the dismantling of a database which would have
seriously intruded on privacy.

Is there a multiplicity of challenges to privacy? Yes, indeed,
and that is why this office is not redundant, but vital. Am
I conscious of the many challenges that it must confront? Yes,
I am, and I say that not with Toronto arrogance or the "je ne sais
quoi" of a former Montrealer, but simply as incumbent in this
position, subject to your further consideration. I say that it is
fundamental to the protection of privacy in this country that we
have a Privacy Commissioner who is active in protecting privacy.

Are there incursions on it? Of course. Are some of them
justified? Perhaps, some are for sure; others are questionable;
some are unacceptable. It is vital that there be ongoing focus on
these issues and an ongoing effort to strike the right balance.
That is why this position exists. Certainly to say that privacy is
dead in this country would be a counsel of despair.

[Translation]

Senator Prud'homme: I rise on a point of order. At the
beginning of the sitting, we authorized, exceptionally, the
broadcasting of our debates. I agreed, but when we authorize
something, it is from gavel to gavel. Now, I am being told that
they have run out of film. I will not ask for the adjournment.

[English]

Permission was granted, yes, but there is no more television. I
do not mind for myself, but I will tell honourable senators one
thing: If we want complete pictures, we have to be completely
televised, otherwise we will not give permission next time.
Senator Corbin is usually very attentive to that.

Some Hon. Senators: Hear, hear!

Senator Prud'homme: It is not your fault.

Senator St. Germain: On the same subject, then, is there any
way that we can prevent this from happening again? The
situation is unfair. It is as Senator Prud'homme said. It is a
question of giving consent and then all of a sudden, when we
decide we do not want to hear certain witnesses, we cut the
TV off. I am not saying this is the case here, but what guarantees
can we have, if we do give consent, that there will be consistency
from gavel to gavel, as he points out?

The Chairman: I thank both senators for raising this issue.
I hope that it does not happen again.

Were you finished, Senator St. Germain?

Senator St. Germain: Correct me if I am wrong, but I
understood you to say, Mr. Radwanski, in reference to one of the
other questions, that sometimes you have to put a little water in
our wine. I find that really scary from someone in your position,
from the position that you hope to assume here. I do not think
there should be any water in any wine. It should be as pure as
pure can be. As much as we are committed to privacy, water and
wine certainly reduce the effectiveness, I think, of your role.

If you wish to comment, that is fine. I appreciate the fact that
you have allowed yourself to be subjected to this scrutiny.

Mr. Radwanski: It is useful to take this opportunity to thank
honourable senators for taking the time to meet.

The Chairman: I still have one more senator on my list.

Mr. Radwanski: I am not saying goodbye; I am just referring
to the senator's remark about me subjecting myself to this
scrutiny. I am making the point that I appreciate very much the
opportunity to do so rather than viewing it as an imposition.

(1810)

On the senator's question about water and wine, I appreciate a
good glass of wine as much as the next fellow, but I certainly
prefer it without water. I am of the belief that, in these positions,
one must remain in close touch with reality. One must set out to
be effective. Sometimes that means compromise.

The private-sector legislation passed by this chamber specifies
that among the options open to the Privacy Commissioner are
conciliation and mediation. That means this chamber itself has
endorsed the principle that, in some instances, for the protection
of privacy, a measure of compromise is valid and appropriate.

I am certainly not the least bit shy in standing up for what
I believe as a matter of principle. Those who know me can attest
to that, but there are also instances where one can do more good
or be more effective by not being an absolutist but by being
somewhat practical in trying to reconcile competing needs and
visions. Case-by-case judgment decides where to dig in and say
something is wrong and where to admit that the competing
interests are legitimate and that a balance must be struck.

As a general statement, I will always err on the side of privacy
because that is my mandate, but I will not deny that in some
instances it is better to be realistic than to be absolutist. I do not
want to be King Canute, telling the sea to roll back. In some
instances, we will build a dike or a bridge or whatever it takes to
achieve the desired results.

Senator Lawson: I have an observation before we start on
Senator Prud'homme's concern about the film. I think there is a
reasonable explanation as to why they ran out of film. All the
surplus film has been seized by the various political parties to
make television commercials for the upcoming election.

I do not know whether I am more nervous or less nervous,
Commissioner, about your saying that you have a law degree but
that you do not practise. I had to retain a lawyer the other week.
He was recommended by my friend Senator St. Germain, who
told me ahead of time that he was high-priced. I asked the lawyer
up front what he would charge, and he answered that he
charged $30 for three questions. I said, "That is a pretty high
rate, is it not?" and he answered, "Yes, it is. What is your third
question?" So if I appear a little nervous, that is why.

I have a question about the longitudinal labour force file. One
should get a medal just for being able to pronounce that. I am
one of those who requested their personal information. I was
very disturbed by mine. I would not like my file to be made
public, not because of all my evil deeds but because my life has
been so boringly dull, according to them, for the last number
of years.

When I read it more carefully, I was disturbed by several
things. For the first third of the file, the vital statistics had me
six years older than my real age. In the next third of the file, I
was two years older. In the last third, my age was correct.

Here are two questions: How many ordinary Canadians have
received benefits early — be it Old Age Security or other
benefits — to which they were not entitled, because incorrect
information was in their file? More important, how many
ordinary Canadians have been denied benefits to which they
were otherwise entitled because of incorrect information?

From a personal point of view, being made six years older,
I wondered if I would be sitting here one day, thinking I had a
number of years left on my term, only to have the Speaker or the
Black Rod summon the Senate police to take me out of this
chamber because my term had expired four or five years before.

Senator DeWare: A stranger in the house.

Senator Lawson: It may seem slightly amusing, but it is not.
Such an error could be serious for many Canadians. It could
cause irreparable harm and financial damage to people who are
caught in this.

I know there is talk about scrapping the file, but what
assistance could be put in place to protect ordinary Canadians
from suffering as a result of the incompetence of the various
agencies of government who gave this incorrect information?

Mr. Radwanski: Senator, that is one reason it is very
important, in our privacy legislation, to protect the right of an
individual to access and to verify any file or information
recorded about his or her private life.

You said you were able to access your file and that is precisely
because privacy law mandates that access. The government
cannot withhold that information from you. The very fact that
such information can be accessed means it can thereby
be corrected.

Communication and public education are truly important in
the Privacy Commissioner's role. People need to be aware that a
great deal of important personal information is kept in files both
in the public sector and in the private sector and that they owe it
to themselves to take appropriate steps from time to time to
access that information and review it. Inaccurate information of
any kind can be potentially harmful to individuals who do not
know it exists.

Our privacy legislation should uphold the right of people to
know what information is being kept about them, to review it and
also to demand changes to anything that is incorrect.

Senator Lawson: I see a flaw in that. We only came to know
that such a file existed within the past year. For the many years
before that, we were not aware that this type of information was
being gathered. What steps can we take in the face of
not knowing?

Mr. Radwanski: That is a very good question.

Senator Lawson: I thought so.

Mr. Radwanski: In the face of not knowing, there is not a
heck of a lot one can do. This compiled joint file came to light.
Most people do not think about such matters, and it is part of our
job to ensure that they do think about privacy and personal
information. Most people, if they did stop to think about it,
would be aware that somewhere in government there must be
some information about them regarding social security, revenue
and the other branches of government. Citizens have a right to
contact all those branches of government and find out what
information is being held on them.

Not everyone will do that, unfortunately, but part of our
mandate is to ensure that people are aware that it can be
important to their well-being to find out what information is
being held on them and to review its accuracy.

In the face of not knowing that a particular file has been
compiled, granted, that is a problem. That is why we have
investigators at the Privacy Commission. That is why we have an
audit function. That is why we have the capacity to bring to light
the existence of files or sources of information or compilations of
information that people might otherwise legitimately have no
way of knowing about.

The Chairman: Honourable senators, this completes the first
round of questions. I am ready now to accept the questions of
senators on the second round.

Senator Kinsella: I have just one short question. Are you aware
of Canada's international human rights obligations for respecting the
right to privacy? In particular, are you aware of the provisions of
article 17 of the International Covenant on Civil and Political Rights,
which is a treaty obligation to protect privacy that Canada has
assumed under international treaty law?

Mr. Radwanski: I am, broadly speaking, aware of them. I am
also aware of the OECD guidelines to which we subscribed and also
the European Community's concerns about privacy.

Senator Kinsella: During our discussions this afternoon, some
honourable senators have alluded to, and you made reference to it,
the fact that in today's Internet world, the invasion of privacy of
Canadians may be perpetrated in extraterritorial settings.

(1820)

Therefore, would you agree that we as a country need to be very
proactive in improving the global infrastructure for protecting
privacy of rights on the global level, and would you, if you are
confirmed as Privacy Commissioner, be a proponent of active
Canadian participation in securing, promoting and protecting privacy
rights under international instruments and through international
collaboration?

Mr. Radwanski: The broad answer to your question is yes,
senator, subject to the caveat that I would always want to be
concerned that in doing this in an international arena, we are
achieving the highest standard, not agreeing to lower our own
protection measures to a lower international common denominator,
which is always a danger. I would not want our sovereignty to be
diminished.

This was one of the issues under discussion a couple of weeks ago
at a meeting in Europe of privacy commissioners and data protection
commissioners from around the world. In fact, that loose grouping is
now in the process of trying to become an organization that, for
instance, will take positions on privacy and data protection issues of
joint concern, of mutual concern around the world, and will try to act
in concert to press for the highest standards. The broad answer to
your question is yes, indeed.

The Chairman: Mr. Radwanski, I thank you sincerely for your
time and your availability. I think you can see the importance that
the senators attach to the Office of the Privacy Commissioner, and I
want to wish you good luck.

Hon. Senators: Hear, hear!

Mr. Radwanski: I should like to take a moment to sincerely
thank honourable senators and members of this chamber, not only
for their questions today but for their history of being good friends
of privacy. I am well aware of the close relationship that my
predecessor developed with this chamber, and I certainly regard the
Senate as a good friend of privacy. If it is my honour and good
fortune to be confirmed in this position, I would certainly want to
have a very close working relationship with the Senate. I would
welcome the opportunity to be of help in any way, both with this
chamber and with your committees and your studies, and I would
very much want the most open and collaborative relationship
possible. I think you have demonstrated your commitment as a
chamber to these issues, and collaboration would be most valuable.
Thank you once again. This has been a great pleasure.

Hon. Senators: Hear, hear!

Senator Hays: Honourable senators, I join the Chair in thanking
Mr. Radwanski and extending him best wishes.

I move at this time, seconded by Senator Louis Robichaud, that
the Committee of the Whole rise and that the Chair report to the
Senate that we have concluded our deliberations.

The Chairman: Is it your pleasure, honourable senators, to adopt
the motion?

Hon. Rose-Marie Losier-Cool: Honourable senators, in order
to welcome George Radwanski, with respect to his appointment as
Privacy Commissioner, the Committee of the Whole has asked me to
report that the committee has completed its proceedings.

Resuming debate on the motion of the Honourable Senator
Hays, seconded by the Honourable Senator Graham, P.C.:

That, in accordance with Section 53 of the Privacy Act,
Chapter P-21 of the Revised Statutes of Canada, 1985, the
Senate approve the appointment of George Radwanski as
Privacy Commissioner.

Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I move adjournment of the debate on the
motion standing in my name with respect to the confirmation of Mr.
Radwanski as Privacy Commissioner.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, giventhat the honourable Deputy Leader of
the Government has spoken to that motion, I would be happy to
move the adjournment.

Senator Hays: I thank the honourable senator for hishelpfulness, as usual.